Download - Indefeasible 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
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?
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
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
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
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