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Law Notes Property B Notes

The Torrens System And The Principle Of Indefeasibility Policy Notes

Updated The Torrens System And The Principle Of Indefeasibility Policy Notes

Property B Notes

Property B

Approximately 56 pages

These exam notes were used to achieve a High Distinction in Property B at Monash University, and include problem question notes and a separate document including content and suggestions for policy question answers. The notes cover all course content as of the exam year and include clear and easily usable exam problem structures.

The notes are easily navigated as include clear and comprehensive lists of contents and page numbers.

The author of these notes has never scored less than a High Di...

The following is a more accessible plain text extract of the PDF sample above, taken from our Property B Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

The Torrens System and the Principle of Indefeasibility

History of the Torrens system

Introduction of the Torrens system (TS)

  • First TS introduced by Real Property Acts 1858-61 (South Australia) by Robert Torrens

  • Sources of ideas

    • Merchant Shipping Act (Imp)

    • UK Real Property commissioners’ report 1857

    • Hanseatic system of title registration (Dr Hübbe)

[5.12-14] Robert Torrens was assisted in creating the system and it was not a radically new system as is sometimes claimed.

Torrens system in Victoria

  • Victoria had a system of deeds registration from the 1840s to the 1990s

  • Torrens system introduced in Vic from 1862 and applied to

    • all land granted from Crown after 2.10.1862, and

    • all other land parcels voluntarily registered by their owners

Adopted under Real Prop Act, now under TLA. All States have the system although the basic features are the same. The legislation does go by different names in each State.

Objects of the Torrens system

[5.25] In the old system one weak link in the chain of title, unless cured by adverse possession, was sufficient to destroy or impair the title of the last person in the chain. The Torrens system was intended to authoritatively establish title by guaranteeing that the person named as proprietor had a perfect title subject only to encumbrances specifically noted on the register. Dealings, not documents, were registered. A dealing was not to be completed until registration (though an unregistered dealing is not without effect). The purchaser therefore has no need to investigate the history of the vendor’s title.

This principle ideally requires the register to reflect all facts bearing on the title of the proprietor, thereby reliving anyone searching title from the need to go beyond the register. The conclusiveness of the register is generally what is meant by the principle of indefeasibility.

[5.26] Objects of the system include

  • providing a register from which persons who propose to dela with land can discover all the facts relative to the title

  • to ensure that a person dealing with land subject to the system is not adversely affected by any infirmities in the vendor’s title that do not appear on the register (thus avoiding the necessity of going behind the register to investigate)

  • to provide a guarantee by the State that the picture presented by the register book is true and complete

    • if this is not true, compensation is to be paid to any person who suffers loss either through the land being made subject to the system or else through the register not disclosing all the facts relevant to the title

  • security of title and security of transaction

  • Objects of Torrens system

  • Promote security of title and security of transaction by

  • Giving publicity to interests so that conflicts of property rights are less likely to occur

  • Protects purchasers against risk of

    • Unregistered prior interests, and

    • defects in the chain of title

  • Indemnifies those who suffer loss through Registry mistake or a rule of the system

Mere fact of deed registration previously did not give priority over unregistered rights. The TS purports to overcome problems of notice.

The TS is different in concept, form and operation: is a system of title by registration

Registration under DRS did not change the nature of the interest (eq to legal etc) or cure title. On TSL registration confers legal title; it creates a central register containing individual interests. The State guarantees the accuracy of the register. TS does not change the types of interest available (eg CTs, life estates) – what changes is the method by which they pass.

  • Legal interest: source is registration in most cases; it creates the right

  • TS replaces the chain of title of the documents by a single certificate of title with all registered interests that exist. This remains at the land titles office and the duplicate is held by the registered fee simple owner or by the first registered mortgagee.

  • Much of the system has been computerised and the aim is the register will be solely computer entries

  • The cert of title ordinarily must be produced when an instrument relating to that land is being registered; the registrar must ensure the information on the original and duplicate certs match.

    • Vol and folio number: folio = pages, vol = the book volume in which the certificate is located. The last/newest owners name is on there at the end of the list.

    • Certificate = now referred to as a folio, duplicate = now referred to as the Certificate of Title

Bringing land under the system

[RG] How does land come under the operation of the Torrens legislation?

For many years, Part II of the TLA provided a means by which unregistered (‘general law’) land could be brought under the Torrens System. The conversion schemes laid down in Part II were under-utilised. The Transfer of Land (Single Register) Act 1998 (Vic) amended the TLA to streamline and accelerate the conversion (ie registration) of general law land. It did so by substituting a new Part II in the TLA. Under the new s 8, all unalienated Crown land is deemed to be under the operation of the Torrens system and a new s 9 imposes a duty on the Registrar of Titles ‘with all reasonable speed to bring under the operation’ of the TLA all land already alienated by the Crown which is not under the operation of the Act.

Other significant amendments include the closure of the deeds register established under various sections (4, 6 and 7) of the PLA; the repeal of all previously existing conversion schemes under the TLA; and introduction of additional means of conversion and the consequential introduction of two additional forms of title to Torrens land: provisional and identified folios.

[5.15] Earliest legislation provided that land alienated or granted by the Crown after the date of commencement was automatically to be under the Torrens system. This has been continued under current legislation (TLA s 8(1)).

[5.16] TLA s 108 requires an applicant to...

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