Indefeasibility Principle and Limits to Indefeasibility

Torrens Title

Torrens: statutory framework

The register

Interests

Indefeasibility Priority

Instruments

Registrable Effect

These ideas are located throughout the statute

Part 2, Div 3; Part 3, Div 1

Part 4

Part 3, Division 2; Part 9

Part 7, 7A

Part 2, Div 1-2; Part 6; Part 8

Part 6 Part 9

Registration

How

dealings

• Which dealings?

• What form?

info

• What information?

• Registrar’s duties?

Benefits

what

• What are the benefits?• What is the effect of

registration?

when

• When do the benefits accrue?

interest

• What is the relationship between registration and an interest?

Registration

Instrument lodged

Instrument

registered

Interest created

Identify the relevant provisions in the LTA

What is the nature and quality of the interest created?

Does time matter?

Fred owns land

F transfers to Joan

Joan borrows $ from bank

Instruments required:1. Transfer of title: Fred to Joan2. Mortgage: Joan to Bank

Which order would the documents need to be lodged in? Why? What would happen if the documents were lodged in reverse order?

Indefeasibility

• What are the indefeasibility provisions of the LTA?

• How are we able to interpret the meaning of indefeasibility under the statute what tools of interpretation are available to us?

IndefeasibilityStatute: text, context, purpose

• Creation of indefeasible title

• Meaning of indefeasible title

• Quality of registered interests

• Purpose of Act

Interpreting…• What if the instrument

is invalid?• What if the transaction

is void?• What if there are other

competing interests?

Invalid interests?

Fictitious person?

Dodgy process?

Fraud?

Who cares about invalid transactions?

Common law creation of an interest

Private instruments• Must satisfy lawful

creation of interest

Chain of title

• Defect will defeat legal estate

LTA creation of an interest

Lodgment

• Becomes part of register

Registration: executive act • Indefeasible title

So…does invalidity affect indefeasibility?

Chain of title The register

How have courts read the Torrens statute?

Explain the courts’ interpretation of the statute

A SELECTION OF EXCEPTIONS TO INDEFEASIBILITY

Torrens - Indefeasibility

Locate the exceptions to indefeasibilityRead the LTA carefullyAre there exceptions outside the LTA? How might these be dealt with?

184 Quality of registered interests

(1) A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests.

(2) In particular, the registered proprietor—

(a) is not affected by actual or constructive notice of an unregistered interest affecting the lot; and

(b) is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot.

(3) However, subsections (1) and (2) do not apply—

(a) to an interest mentioned in section 185; or

(b) if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.

Explain: what does it mean?

…if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.

Making meaning of the statute: a ‘multi-factorial approach’

PURPOSE

CONTEXT

TEXT

Judging is a practice of doing, not articulating the underlying theory or structure being applied…The general method is ever-present in the case law.

CALD Guidelines, 13

‘In personam’ or ‘personal equities’ exception: what does it mean?

‘Short lease’: interpret

Omitted easement: interpret

Meaning of ‘omitted’

What if it was never on the register?

Meaning of ‘easement’

What if it is a common law easement?

Locate interpretive tools

Explain the courts’ approach

Look outside the LTA: inconsistent statutes

Other statut

eLTA

Com

mon

sub

ject

matte

r

If there is an inconsistency between one statute and a later statute, the later statute

prevails… [I]f the later enactment contains clear language from which it is plain that its provisions were intended to apply to land under the Act and to apply in a manner inconsistent with the Real Property Act, then they must operate according to their meaning. For the later enactment of the legislature must be given effect at the expense of the earlier.

South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, 616, 625

Consider: implied repeal??

Real Property Act 1861

Acquisition of Land Act

1967

Right to resume

Later Act

Indefeasibility

Acquisition of Land Act

1967

Land Title Act 1994

Later Act

Indefeasibility

Right to resume

Implied (common law) exception to indefeasibility?

Exception• No intention in the

Torrens statute to interfere with general law rights

No exception• Common law

easement (not capable of registration) is not an exception to indefeasibility

Overview

How to create an interest in land

Nature of the interest created

Quality of the interest

Boundaries of that quality (exceptions)

Making meaning of the statute: text, context, purpose