Tutorial: Dealings with Land: An Introduction 1. Contract signed 2. Pest inspection and finance, title search, other searches; Brisbane city council search, environmental search, land tax search. 3. contract unconditional 4.priority notice lodged 5. Settlement day! Bank will take paper for mortgage, so they resell the property if mortgage is not paid. 6. Registration; becomes legal owner once title is registered. Indefeasible interest is attained. LTA ss 181, 184(1) - creates indefeasibility. 4.1 Breskvar v Wall and immediate indefeasibility The following quote from CJ Barwick in Breskvar v Wall is perhaps the most significant in Australian real property law: The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. a) Explain what this means, and what its effect is. This means that title in property is emanated from the fact that you have registered. It is not attainable at any point before that. b) How might Breskvar v Wall have been decided if the court had chosen to apply deferred indefeasibility instead of immediate indefeasibility? Immediate indefeasibility - protected title, doesn't matter that the past transaction was void etc. A- Bresk B- Wall C- Alb Deferred indefeasibility - A > B > C A>B void Then under the concept B would have indefeasible title under registration but the benefit of this is deferred meaning A can bring a proceeding against B. But from B>C, C has immediate indefeasibility, and A then can't do anything.
If the court applied deferred indefeasibility: Bresk can bring an action against Wall, under deferred, A would obtain the property back and C- Alb would not have the property. c) Look at the wording of s184 (1) and (2) of the Land Title Act 1994. Do these sections appear to leave room for deferred indefeasibility? 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. - no room for deferred indefeasibility as once registered of an interest, the lot is free from all other interests . s 184(1) 2) not affected by actual or constructive notice of an unregistered interest affecting the lot. Completely protected of all actual or constructive notice on any other unregistered interest. Liable only to a proceeding, if brought by the