Summary Laws204: Land Law (Week 1 thru 11)
Notes
Week one Course structure ✓ Torrens system of land registration ✓ The concept and scope of indefeasibility of Torrens title and the exceptions to it ✓ The statutory indemnity ✓ Electronic conveyancing ✓ Equitable interests in land, the caveat system and priority rules for competing equitable interests ✓ Mortgages ✓ Leases ✓ Easements and restrictive covenants
‘Title’ ✓ What is ‘title’?✓ Proof of title Conveyancing prior to Torrens ➢ Feudal system – Seisin/possession; “feoffment with livery of seisin”; “lease and release”; “grant”
Deed-based system (old-system title/documentary titles) Under old system title, there are four key rules, which depend on the nature of the interest and the timing of the acquisition of each interest
These are competitions between:
➢ an earlier legal versus a later legal interest; ➢ an earlier legal versus a later equitable interest; ➢ an earlier equitable versus a later legal interest; and ➢ an earlier equitable versus a later equitable interest 1 / 4
While currently New South Wales land is overwhelmingly Torrens title, the importance of these rules for a contemporary understanding of New South Wales land law belies the smaller land mass still governed by them
This is for two reasons:
✓ the old system rules provided the historical framework that the drafters of the Torrens regime railed against, and so an understanding of the old system rules illuminates the intent that informs Australia’s contemporary land registration scheme ✓ the Torrens system does not represent a complete override of the old system rules Thus, particularly in the context of disputes between unregistered interests, an appreciation of the old system priority rules remains significant
Under the traditional common law rules, a purchaser was fixed with constructive notice of all documents in the chain of title Common law conveyancing practice required the purchaser to search the chain of title for a ‘good root of title’ of at least 60 years prior to the transaction This meant that the reasonably prudent purchaser would search the chain of title to locate
an instrument that:
✓ conveyed the entirety of the legal and equitable estate (e.g. a conveyance of the legal fee simple, or a legal mortgage) ✓ described the property adequately, and ✓ did not throw doubt on the title
That instrument was required to be at least 60 years prior to the date of the transaction This would mean that, for example, if the title offered by the vendor consisted of a series of conveyances of 55, 75 and 80 years prior to the date of the transaction, the purchaser was required to call for the production of the 75-year-old conveyance plus each more recent conveyance after that date The doctrine of constructive notice would fix the purchaser with notice of all interests that the purchaser would have discovered had they properly and diligently investigated the whole title for the requisite period
Conveyancing Act 1919 (NSW) s 164 confirms the common law rule that the purchaser is fixed with notice if he or she fails to inspect title, or does so without reasonable diligence 2 / 4
However, Conveyancing Act 1919 (NSW) s 53(1) has significantly varied the common law standard, by halving the required period for a good root of title to only 30 years ✓ Title was derivative – the validity of documents was crucial to the deed-based system (also known as the ‘old-system’ title) ✓ Deed-based ➢ Historical investigation of chain of title ➢ England – changed to 60 years
➢ NSW – 30 years: Conveyancing Act 1919 (NSW) s 53(1)
- Defeasible
Conveyancing prior to Torrens - flaws ➢ Title was dependent on previous titles ➢ Defeasible ➢ Complex system ➢ Costly for the public ➢ Open to fraud ➢ Provided little security to mortgagees who lent on the security of title but did not retain the title deed
Old system title and conversion to Torrens title 3 / 4
Real Property Act 1900 (NSW) Land is Torrens title land because either it was originally granted by the Crown as Torrens title land or because it was converted to Torrens title from old system title or Crown lands title All Crown grants of freehold land in New South Wales after 1 January 1863 are held according to the Torrens system and are subject to the Real Property Act 1900 (NSW) All Crown grants of freehold title made before that date need to be converted if they are to be held under the Torrens system Pts 4, 4A and 4B of the Real Property Act 1900 (NSW) are relevant to this process of conversion of old system land to Torrens title
The Torrens system of title by registration Old conveyancing systems based on English law – complex and uncertain Sir Robert Torrens devised the Torrens system The legislation implementing Torrens first introduced in 1858 in South Australia.“Torrens title” refers to land titles issued pursuant to the Real Property Act 1900 (NSW) or its equivalents in other states and territories (Real Property Acts or Transfer of Land Acts) This statute must be read in conjunction with the general property law statutes, the most important being the Conveyancing Act 1919 (NSW)
Key features of the Torrens system ➢ Certainty of title and ease of transactions ➢ Each grantee becomes a fresh grantee from the Crown
As the High Court recently affirmed in Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; 316 ALR 11 at [16] per French CJ, Hayne, Bell and Gageler JJ, a ‘central and informing tenet’ of the Torrens system is that it is not a system of registration of title, but a system of title by registration
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