Torrens Title Essay

For land to be registered to a person in Australia it must be registered under the Torrens Title Registry; a sector of government that holds the entire land title register and thus is evidence to prove the fee-simple ownership rights (freehold title) as the owner. The Torrens Title is ‘a system of title by registration’, meaning a buyer can only receive the title of a parcel of land if it is first registered (Breskvar v Wall, 1971). Once an owner is registered into the title of the land, the owner has indefeasibility, meaning that once a title is registered to the registered proprietor it cannot be effected by any previous defects that may have existed in the title prior to registration (Stewart, C. 2009). The significance of this registration

system has been ‘to provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question’: Westfield Management Ltd v Perpetual Trustee Co Ltd (2007). This report will delve into the Torrens Title System, covering the history of the conversion from the Registration of Deeds to the Torrens System and overarching strengths and weaknesses of both systems. Later, the report will discuss how it has effected economies ranging from local to international; and what the effects have been on developers and consumers raising finance and establishing property values.

History of Torrens Title

The main objective that prompted the beginnings of the Torrens Titling system was the need to ensure the land purchaser would be secure in acquiring the certificate of title for the registration of the land and the incontestability of the title (The Principles of the Torrens Title, Introduction to the Land and Water Allocation Registries, Queensland Land Title Practice Manual [0-0190]). Prior to this titling system, the recognition of ownership of property in Australia was ‘chaotic’, leading to many law suits as people were never guaranteed ownership of their property (Altavas, n.d.).

The Torrens’s Title was devised by Sir Robert Richard Torrens in 1857 within his Bill for the Parliament reform when he was the House of Assembly of South Australia (Australian Dictionary of Biography, 1976).

Torrens previously had worked as the Collector of Customs in Adelaide dealing with ships and found the system of regulation simple and efficient (South Australian Government, 2018). Many years later, the plan for land titling was submitted for approval and soon after adopted by the South Australian Government in 1858 under the Real Property Act (1858) (Torrens Title System, Introduction to the Land and Water Allocation Registries, Queensland Land Title Practice Manual, [0-0180]). Although, in the Acts of 1860 and 1861 the system was adjusted but still demonstrated indefeasibility of title and is how it stands now (The Transformation of Torrens’s Title to the Torrens Title, 1962). This amended act is what other states and countries adopted. The first state in Australia to follow the Torrens System was Queensland in the Real Property Act 1861 (Queensland Land Title Practice Manual (QLTPM, [0-0190]). Although, Queensland based their act off the 1860 South Australian Act, rather than the more developed 1861 Act (The Transformation of Torrens’s Title to the Torrens Title, 1962). Over the next 15 years, Victoria, New South Wales, New Zealand and Western Australia had modelled their own acts based off updated versions of the South Australian Real Property Act 1861, each within their varying names of acts but all with the general scheme of indefeasibility of title. Outside of Australia, the first American state to adopt the Torrens Titling was Illinois in 1897. It was said that “(the Torrens System) will surely sweep over the country”, although this did not occur and only 4 other states adopted the act (Le, 2000). Other countries to have adopted the Torrens title by registration system include: Singapore, Saudi Arabia, Hong Kong, The Philippines, Fiji, New Zealand,

Kenya, Vietnam, Croatia, Canada and Thailand (Mills, 1999). In the Land Title Act of 1994, a computerised register was established to replace the paper-based Register, that held 2.6 million paper titles [QLTPM, [0-0300]. By the next year the conversion from paper to the Automated Titles System (ATS) was complete (QLTPM, [0-0310].

Deeds

Prior to the Torrens Title, the registration of deeds was the method of land title by registration worldwide. This registration system “creates a lengthening chain of title, never any stronger than its weakest link, and piles up unending bits of evidence which must first be found and fitted together before any figure can be made out” (Chaplin, 1898). The deed system involved little amount of governmental scrutiny – which was the entire issue with it. In addition, deed registration was not accompanied by plans of survey, thus reference to boundaries of a property were made by description using compass bearings and distances between reference points (QLTPM, [0-0050]).