Accounting for Risk: the Advent of Capped Conveyancing Title Insurance

“Accounting for risk: The advent of capped conveyancing title insurance” 3 (2015) 24 Australian Property Law Journal 371

11 Pages Posted: 20 Feb 2019

See all articles by Lynden Griggs

Lynden Griggs

University of Tasmania

Rouhshi Low

Queensland University of Technology

Rod Thomas

Auckland University of Technology - Faculty of Business & Law; University of Cambridge - Cambridge Centre for Property Law; European Law Institute; IPRA-CINDER; Australian College of Strata Lawyers

Date Written: January 30, 2015

Abstract

Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this paper we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.

Keywords: land title insurance, automation risks, who carries the risk of abuse under automated land registration, torrens and title insurance

Suggested Citation

Griggs, Lynden and Low, Rouhshi and Thomas, Rod, Accounting for Risk: the Advent of Capped Conveyancing Title Insurance (January 30, 2015). “Accounting for risk: The advent of capped conveyancing title insurance” 3 (2015) 24 Australian Property Law Journal 371. Available at SSRN: https://ssrn.com/abstract=3325567 or http://dx.doi.org/10.2139/ssrn.3325567

Lynden Griggs

University of Tasmania ( email )

Private Bag 89
Hobart
Tasmania, 7001
Australia

Rouhshi Low

Queensland University of Technology ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Rod Thomas (Contact Author)

Auckland University of Technology - Faculty of Business & Law ( email )

3 Wakefield Street
Private Bag 92006
Auckland Central 1020
New Zealand

University of Cambridge - Cambridge Centre for Property Law ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

European Law Institute ( email )

European Law Institute Secretariat Schottenring 1
Vienna, 1010 Vienn
Austria

IPRA-CINDER ( email )

Diego de León
21, 5ª planta
Madrid, 28006
Spain
+34 91 270 17 90 (Phone)

Australian College of Strata Lawyers ( email )

PO Box 182
Moorooka
Moorooka, Qld
Australia

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