Torrens Title

History

"Torrens Title" is named after its inventor, Sir Robert Richard Torrens who was instrumental in the implementation of this unique and efficient system of dealing with land in 1858. Torrens drew on his background and experience in merchant shipping law to devise a revolutionary system of land ownership, based on the methods of registering ownership of, and dealings with, ships under long-established merchant shipping law.

His innovation resulted from a desire to do away with the complexity of the old English land law which was based on medieval concepts and made conveyancing, or the transfer of properties, cumbersome, time consuming and expensive.

It is now widely used in many parts of the world. In fact, it is one of Australia's most famous legal services exports. The system is one where your title or ownership right, to the property is actually created by the very act of registration, or recording in a central (usually governmental) register or record. In New South Wales the system is largely governed by Real Property Act 1900. As Australia is a federation of sovereign states, each state has a different system of land law, but all are based on the same torrens system.

Purpose

The main object of the system is to make the register conclusive (in most cases) without a transferee or purchaser having to look behind the register as was the case in the "old system title" system inherited from age-old English legal practice and procedure. Once your name is registered or recorded on the title register under Torrens title you become the owner of the property to the exclusion of all others, by the very fact of registration. You therefore obtain "title by registration", which is the pivotal concept of Torrens Title.

Under this system no document such as a transfer or a mortgage is effective to pass the title or give rise to an interest in a property unless and until it is recorded at the centralised registry. The Land Titles Office (also known as the Registrar General's) prescribes the form and content of documents which must be used to effect title charges.

It is also important to realise that stamp duty will generally need to be paid on most documents which need to be registered. If stamp duty is payable, the Land Titles Office must refuse to register that document until the duty is
paid.

Unchallengeable

Normally, the person who is recorded as the owner of a parcel of land cannot have his title challenged or overturned. This concept is known as 'indefeasibility' of title. There are, however, exceptions to this general rule. The main ones being:

• if a dealing is registered fraudulently - this is a very complex area of law.
• if any existing easement has been wrongly left off the title or misdescribed by the Land Titles Office;


• wrong boundary descriptions;


• leases for less than 3 years, which do not have to be registered - so, if 'A' transfers to 'B' and no lease is shown on the title, 'B' will take subject to any tenancy, even though not shown, if it is for a term of less than 3 years.

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