Does the introduction of a system of registration of title remove the need for the law to recognise possessory or equitable interests in land? Why? Why not? I INTRODUCTION The need for the law to recognise possessory and equitable interests in land under a system of registration of title is a contested issue in Australia. The term ‘title’ means the extent of ownership over property as recognised by the legal system. For the purpose of this essay, a system of registration of title means the Torrens title system. The protection of possessory and equitable interests in Western Australia will be discussed, with reference to the Torrens title system and real property. It will be argued that there is still a need for the law to recognise equitable interests in land, however, the Torrens framework does remove the need for the law for the law to recognise possessory interests, in particular the doctrine of adverse possession. II CONTEXT In Australia, there are two systems for registration of interests in land; the general law and Torrens systems. Today, the Torrens system is used in every Australian jurisdiction, being introduced in Western Australia on 1 July 1875. A What possessory/equitable rights existed prior to Torrens? At the commencement of European settlement, Australia inherited the system of land law that existed in England. Before the introduction of Torrens in 1875, a system of registration of deeds was in place in Western Australia. This is a system under which instruments relating to property transactions are recorded on a central register. In Western Australia, priority is decided according to the date of registration, and there is no stipulation concerning the bona fides or valuable consideration given by the... ... middle of paper ... ...able Priorities and the Failure to Caveat’ (1989) 6 Auckland University Law Review 199 Robinson, Stanley, Transfer of Land in Victoria (1979) MacCallum, Susan, ‘Uniformity of Torrens Legislation’ (1993) 1 Australian Property Law Journal 135 Tooher, Joycey, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 Australian Property Law Journal 117 B Cases Jacobs v Platt Nominees Pty Ltd [1990] VR 146 Pilcher v Rawlings (1872) Rice v Rice Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch D 482 Bahr v Nicolay (1998) 164 CLR 604 Gunns Ltd v Balani Pty Ltd [2011] FCA 431 Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2001] WASC 87 C Legislation Property Law Act 1969 (WA) Registration of Deeds Act 1856 (WA) Transfer of Land Act 1893 (WA) Dividing Fences Act Limitation Act D Other
The amendments to the Land Title Act 1994 introduced in s. 185(1A) and s. 11A requiring reasonable steps to be taken to ensure the person who executed the instrument as mortgagor is identical with the person who is, or who is about to become, the registered proprietor of the
In Palgo Holdings v Gowans , the High Court considered the distinction between a security in the form of a pawn or pledge and a security in the form of a chattel mortgage. The question was whether section 6 of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) (‘the 1996 Pawnbrokers Act’) extended to a business that structured its loan agreements as chattel mortgages. In a four to one majority (Kirby J dissenting) the High Court found that chattel mortgages fell outside the ambit of section 6 of the 1996 Pawnbrokers Act. However, beyond the apparent simplicity of this decision, the reasoning of the majority raises a number of questions. Was it a “turning back to literalism” as Kirby J suggested, or was it simply a case where the court declares that parliament has missed its target?
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
The validity of British’s occupation of Australia has been fundamentally shaken. The decision protected Aboriginal people’s cultures and lifestyles to a certain degree. Moreover, it guaranteed that some of the lands they live will not be developed. There were five key issues of importance to legal precedent in the Mabo decision for the recognition of Indigenous peoples’ rights in Australia (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2017). For example, it helps to promote the idea of non-discrimination. From then on, a series of laws had been introduced to help safeguard their standard legal rights and
The High Court did, however, conclude in that case (a conclusion confirmed in WA v Commonwealth, Wororra Peoples v WA and Teddy Biljabu and others v WA, High Court, March 16 1995) that some Aboriginal land law (that which attracted the status of 'native title') survived the colonisation process. What is far less certain is the fate of Aboriginal customary laws that were not concerned with title to land. Did traditional laws on subjects such as family relationships, title to goods, community justice mechanisms, inheritance and criminal law survive c...
Australians by not clarifying it’s stance on it’s international obligations to Indigenous Australians or reflecting it’s international rhetoric and signature on UN conventions by implementing some in domestic law. This inadequacy in the development of Indigenous Peoples Land Rights in Australia has been declared by the Working Group on Indigenous Populations in July 1997, and highlights the Australian government policy regarding Indigenous Peoples Land Rights and may be argued as a denial of justice for Indigenous People by the Australian legal system. Australia can be said to be ineffective in achieving justice for Indigenous People due to it’s failure to recognise Indigenous Australians rights to land domestically by failing the Human Rights standards contained in international initiatives to which it is a signatory.
Property rights can be found in the oldest laws written, and equate the expectation of use or profit to some payment from the very beginning. Modern property rights can be said to begin with the transition from ownership by entities as being the primary form of property right, to the theory that property rights are to promote th... ... middle of paper ... ... operty’ in the case of Goldberg v. Kelly to be protected. This shows the state evolving in order to protect the citizen’s rights.
Terra Nullius was once apparent in Australian society, but has now been nullified with the turn of the century and the changes of societal attitudes. With the political changes in our society, and the apology to Indigenous Australians, society is now witnessing an increase in aboriginals gaining a voice in today’s society. Kevin Rudd’s apology as described by Pat Dodson (2006) as a seminal moment in Australia’s history, expressed the true spirit of reconciliation opening a new chapter in the history of Australia. Although from this reconciliation, considerable debate has arisen within society as to whether Aboriginals have a right to land of cultural significance. Thus, causing concern for current land owners, as to whether they will be entitled to their land.
Law Foundation, L.F. 1997. A Bill of Rights for Australia - But do we need it? [Online]. [20th December 2016]. Available from:
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
Land rights now referred to the continual legal exertion to reclaim ownership of the land and waters that was called home prior to British colonisation (Creative Spirits, 2011). Australian Museum (2015) and Creative Spirits (2011) acknowledge the struggle to gain legal recognition and ownership of Indigenous land is difficult and expensive. Furthermore, the history behind the struggle in earlier years often resulted in violence as Indigenous Australians were dispossessed of their land (Australian Museum, 2015). Subsequently, the struggle for land rights continued through the legal and political systems; as demonstrated in 1982 when Eddie (Koiki) Mabo and four other Meriam people decided to pursue declaration of their customary land rights in the High Court of Australia (Hill, 1995). Based on the findings of Creative Spirits (2011) Indigenous Australian land rights appeared promising in 1983 when the Hawke Government promised legislation to ensure that Aboriginal and Torres Strait Islander people’s land rights are protected throughout Australia. The legislation was said to permit Indigenous Australians to exercise the right of control over mining on Indigenous Australian land to ensure sacred sites are protected (Creative Spirits, 2011). However, in 1984 the mining companies fought back to repossess control over land. Mining and pastoral industries were considered too powerful and
One of the special concepts in land law is of overriding interests. The standard practice in the English land law is all the interest and rights affecting or is binding over particular a land should be registered in the Register. However, the concept of overriding interest denotes that there are interests which are binding on the owner (the registered proprietor) regardless of not being formally registered. It was introduced because in that era it was though that it would be unreasonable and unjust to overlook such rights and interest enjoyed. Overriding interests need not be registration to bind the legal owner of the land. Therefore, if the land is sold to another person the interests and rights would not be lost. It can be said that overriding by nature are unregistered if they are registered they will cease to be an overriding interest.
The idea of registering title to land was so that land would be guaranteed by the state and also for it to be relied on as proof of ownership1. This registration of titles would enable a safe, simple and economic system of transferring land between two parties thus, cutting the costs of conveyancing and preventing the chances of fraud from occurring. This system is contained in the Land Registration Acts and supplemented by the Land Registration Rules. A national system of land registration was first attempted under the Land Registration Act 1862. As this voluntary system proved ineffective as well as other further attempts in 1875 & 1897, Land Registration Act (LRA) 19252 was brought into force. The underlying objective of the LRA 1925 was to simplify conveyancing by replacing the older haphazard system of unregistered conveyancing with a system of land registration3. Although the system served well for over seventy years, it was unable to meet the requirements of a modern technological age. The Land Registration Act (LRA) 20024 was then brought into force and repealed the LRA 1925 in its entirety but still applying the fundamental principles.
‘Possession is nine-tenths of the law’, this old phrase is said to be a precept from old English Common Law and today, it is one of the most recognised and frequently used legal adages in history. However, despite its widespread use, we must ask, exactly how much truth is there to this common phrase? Is possession really nine-tenths of the law in Australian property law when determining ownership of choses in possession?