The Personal Property Securities Register overhauls the legal framework for taking security interests over personal property, and consolidates over 70 pre-existing state and territory-based registers.
If you are a landlord, builder, developer or are otherwise involved in real property transactions, it is vital that you obtain legal advice to ensure that your personal property rights are adequately protected.
The Personal Property Securities Act 2009 (Cth) (“the Act”) commenced on 30 January 2012, and created a new national online register of security interests in personal property, known as the Personal Property Securities Register (“PPSR”).
The online registration of security interests is open to organsations or natural people, whether they relate to commercial or consumer personal property.
Under the Act, personal property is defined as any form of property other than land, buildings or fixtures that form part of land, or a right, entitlement or authority. The most common examples of personal property include boats, cars, caravans, inventory, livestock, and shares. Personal property can also include non-material items such as accounts, intellectual property or investment instruments.
TORRENS TITLE REGISTER
It is important to note that personal property does not extend to land, buildings or fixtures (known as ‘real property’).
In Australia, most of our real property dealings are registered under the Torrens Title system. Similarly to the PPSR, the Torrens Title system is computerized and any dealing which affects a parcel of land must be registered on the register. The most common example is a bank mortgage over a parcel of land, which is noted as a registered dealing whenever a search of the Torrens Title register is undertaken on that land.
REAL PROPERTY and the PPSR
The Act has an express exclusion regarding land, buildings and fixtures. It is therefore not necessary to search the PPSR when buying or selling land or fixtures, and only the Torrens Title system must be searched.
There are however many ways in which the PPSR affects real property transactions, including conveyancing and leasing matters. Some examples include:
- A lease of premises containing items belonging to the landlord – It is vital that all landlords register any personal property they include within a premise they lease, such as when an industrial property with a crane installed is leased. The landlord’s ownership of the crane should be registered on the PPSR, to ensure that a mortgagee or other third party will not sell the crane if the tenant breaches any loan or other agreements it has in place;
- A lease where the landlord retains rights to the fit out – In circumstances where a landlord retains ownership of the premises’ fit out, or has a right to ownership of the fit out when the lease is terminated, the landlord’s interest in the fit out should be registered. If not, the landlord runs the risk that another person or entity with a registered interest against the tenant will have a superior interest and take priority over the landlord in any dispute over ownership of the fit out;
- Security deposits under leases – Should be noted on the PPSR; and
- Real estate purchases including personal property – A common example is the purchase of a farm or other rural property which includes stock in trade, livestock, or pieces of machinery. It is important that a search of the PPSR is conducted prior to finalisation of the purchase, or the purchaser runs the risk that another entity with a registered interest against the vendor will have a superior interest in the property and take priority over the purchaser.
The above is not an exhaustive list but provides a few examples where real property transactions may be affected by the PPSR.