Title 

Title is the word property lawyers use for a person's legally recognised right to a thing — the answer to the question "does this person own it, and how strong is their claim?" Title is a broader and more demanding concept than possession, and understanding the difference, and how title is proved, underpins everything that follows about registered land, leases, mortgages and personal property security.

Title as a bundle of rights

Ownership in Australian law is usually described as a bundle of rights rather than a single, indivisible thing: the right to possess, to use, to exclude others, to derive income, to alienate (sell, lease, mortgage or give away), and to consume or destroy. Title is the legal status of holding that bundle, or some defined subset of it, over a particular thing. A person can hold title to an interest that is less than full ownership — a leasehold estate, a mortgagee's security interest, or an easement are all interests that have their own title, even though none of them amounts to full ownership of the underlying land.

Because title is a bundle, it can be split: an owner may hold the freehold while a tenant holds a leasehold title carved out of it, and a bank may simultaneously hold a mortgagee's title over the same land as security. Each of these titles is a genuine property right, not a mere personal claim, which is why each can, in principle, be asserted against third parties and not only against the other party to the transaction that created it.

Title and possession compared

Possession, covered separately in this module, is a factual state of control, protected because a stable system depends on respecting the position of things as found. Title is a stronger, more abstract claim: it does not depend on physical control at all, and a person can hold title to land or goods they have never touched and do not currently possess. Where title and possession diverge — a mortgagor still possesses land subject to a bank's registered mortgage, a bailor's goods are possessed by a bailee — title determines who has the superior right if the question is pressed to its limit, while possession determines who prevails in the meantime against everyone with a weaker claim.

Proving title: general law and registration

Historically, and still today for property outside a registration scheme, title is proved by a chain of title: a sequence of documents — grants, conveyances, wills, mortgages and their discharges — tracing the property back through successive owners to some accepted starting point, or root of title. Each link in the chain must itself be validly executed, and a defect anywhere in the chain can undermine the title of every later holder, even one who dealt honestly and paid full value. Investigating a chain of title is time-consuming and never entirely free of risk, because a defect can lie hidden many transactions back.

Registration systems exist to solve this problem by making the register itself, rather than a private chain of documents, the source of title — the principle Breskvar v Wall (1971) 126 CLR 376¹ describes as the register giving title its own "currency". Once an interest is recorded on the appropriate register, a person dealing with the registered proprietor can generally rely on the register as showing the true state of title, without needing to investigate the history behind it. For land, this is the Torrens system, examined in the companion article on land registration. For security interests in personal property, an analogous function is performed by the Personal Property Securities Register. Both schemes change what title fundamentally depends on — not a provably unbroken chain of private dealings, but a public record that the law treats as authoritative, subject to defined exceptions.

Why the distinction matters

Whether a person's rights arise from title proved by a chain of documents, from registration, or from possession alone determines what has to be pleaded and proved in a dispute, what searches or investigations a purchaser must undertake, and what defences are available to a person who acquired an interest without knowing of a competing claim. Getting the source of title right is usually the first step in any property problem.

Applying this in a problem question

1. Identify what interest is in dispute and whether it is capable of amounting to title (a proprietary right) rather than a merely personal claim.
2. Ask whether the property is subject to a registration scheme, and if so, whether the interest in question has been registered.
3. If registration does not apply, or the dispute concerns unregistered dealings, trace the chain of title back to identify any defect and who is affected by it.
4. Distinguish the party who holds title from the party who merely holds possession, and explain what each can and cannot do as against the other and as against third parties.
5. State whether the outcome depends on the strength of documentary title, on registration, or on possession alone, and justify the choice.