TORRENS SYSTEM AND INDEFEASIBILITY INDEFEASIBILITY PROBLEM SOLVING Pursuant to s 184, a registered proprietor takes his or her interest subject to other registered interests, unless any of the exceptions apply: · fraud exception · personal equity (or in personam) exception · careless mortgagee exception (links to ss 11A or s 11B) Personal equity examples: · RP who renegs on their obligation to sell under a contract of sale (who relies on indefeasibility) does not have a good case - in personam can be invoked to defeat RO indefeasible title · RO grants mortgage in non-registrable form and then denies its existence based on indefeasibility - in this instance the lender can defeat indefeasibility . In both cases, RO did something personally to create an interest in the land for someone else. And that someone else can then act on those rights by invoking the in personam exception THE TORRENS SYSTEM - OVERVIEW Overview A system of registration of title to land - title is gain by registration, not registration of title Title not dependent on predecessors' titles - so no need to prove a chain of title Indefeasibility of title - refers to immunity from attack by adverse claims to the land or interest Frazer v Walker However, indefeasibility of title is not absolutely indefeasible as it may be defeated or qualif i ed Cassegrain v Gerard Cassegrain & Co Pty Ltd Used in all states of Australia, in New Zealand, England and some states of the United States There is no old system land left in Queensland, ACT and NT See Land Title Act 1994 (Qld) First introduced in South Australia 1858 Introduced in Qld in Real Property Acts (Qld) 1861 and 1877 Superimposed upon 'old system' title - read in conjunction with PLA and common law THE 'OLD SYSTEM' - CONVEYANCING Background Private conveyancing - dependent on the nature of the title Need to prove a 'chain of title' Nemo dat quod non habet - you cannot give what you do not have Adam McRae LLB301 - Real Property Law
R-A-BAC-DE fs fs fs fs For E to prove they have valid title, must prove valid transfer for all previous individuals. As this has not occurred, cannot prove valid title Registration of Deeds Public register of deeds - registration not compulsory Did not cure any defects in a seller's title - validity still dependent upon the chain of title Priority according to date of registration, not execution See PLA ss 241-9 for all above All registered deeds and other instruments made bona f i de and for valuable consideration take priority according to the date of registration (not execution) PLA s 246 TORRENS SYSTEM General Def i nitions (LTA s 4, Sch 2) Each parcel of land is called a lot · Each lot exists on a plan · Each lot has a unique title reference number The Torrens system protects registered interests · Each person who has a registered interest in a lot is a registered proprietor