Torrens Property Title

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UNIVERSITY OF NEW ENGLAND LEGAL STUDIES 282 PROPERTY LAW II ASSIGNMENT 1 – SECOND SEMESTER 2009 EDUARDO ESCANO STUDENT NUMBER 220028502 UNIT COORDINATOR: John Page SUBJECT: Is there is an internal contradiction in a system of title by registration where the validity of certain proprietary interests is derived from sources other than registration? NUMBER OFWORDS: 2,411

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Introduction

Under the Torrens system of land registration the State guarantees that every registered title to an estate, interest or encumbrance in land is effective, enforceable vis á vis the world at large and free from any adverse prior unregistered interests. The Torrens title system of land registration is a positive and bijural system1that operates on the basis of a certificate of title, which is a unique document representing title for each parcel of land, called folio, which is kept by the Registrar General, at which office it is available for public inspection, with a copy being issued to the current owner of the land. The maintenance of the land registry by the State guarantees an indefeasible title to those that have dulyregistered their estate, interest or encumbrance, thus doing away with the previous problems of uncertainty, complexity and cost formerly applicable to the old system of land title, which was based on evidencing an unbroken chain of title back to a good root of title. Thus, the Torrens system not only recognizes the existence of rights, but does in fact create them.

The integrity and propermanagement and operation of the system requires that all registrable interests over Torrens title land be registered in order to take advantage of the indefeasibility provisions and of the three principles (mirror, curtain and insurance) that form the basis and foundation of the Torrens title system.

1

Positive in that it provides for the substantive right by the act of registration. Bijuralin the way it imposes its own rules: See generally: E Cooke, ‘Land Registration: Void and Voidable Titles – A Discussion of the Scottish Law Commission’s Paper’ (2004) Conveyancer and Property Lawyer 482.

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Because of this, the basic tenet of the system is that valid proprietary interests are exclusively derived from registration, so that the validity ofproprietary interests arising from alternative sources constitutes an internal contradiction that effectively detracts from the integrity, completeness and effectiveness of the system.

Indefeasibility of title

The indefeasibility of title concept is one of the main features and attributes of the Torrens land title system, involving the proposition that once a person has been registered asproprietor of a certain estate or interest in land that person acquires a title that cannot be vitiated expect as prescribed in the legislation establishing the system2. The effect of indefeasibility is set out in the paramountcy provisions, contained in the Torrens legislation in each State, which specifically states that the estate of a registered proprietor is paramount aside from a number ofstatutory exceptions, which are compounded by additional exceptions arising from overriding statutes.

Save for statutory exceptions and the effect of overriding legislation, it is an established fact that the indefeasibility principle does not preclude the courts from enforcing against registered proprietors any in personam obligations that may

2

The Custodian of Expropriated Property andanother v Tedet and others [1964] 113 CLR at 3312.

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arise from their transactions and specific conduct, irrespectively of whether any such obligations were created before or after registration.3

Statutory exceptions

Each of the Australian States has slightly different real property laws and provisions. In the case of NSW the paramountcy provisions may be...