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Report on Equitable Interests and Torrens

   

Added on  2020-05-04

17 Pages4601 Words60 Views
EQUITABLE INTERESTS AND TORRENS TITLE 1Equitable interests and Torrens titleNamesClassInstitution

EQUITABLE INTERESTS AND TORRENS TITLE 2ContentsHistorical context.........................................................................................................................................3Introduction.................................................................................................................................................3Features of Torrens System.........................................................................................................................5In Personam Rights......................................................................................................................................8The Torrens System...................................................................................................................................10Indefeasibility of title.................................................................................................................................11Conclusion.................................................................................................................................................13Bibliography...............................................................................................................................................15

EQUITABLE INTERESTS AND TORRENS TITLE 3Historical context: In the present time of registered title and computerized informationregarding the title, a question arises that to what extent the presence of equitable (informal)interests on land can undermine the certainty of registered title over land. The English law ofproperty was received during the period of colonization, therefore, it included the funeraldoctrine of tenure. Instead of possessing allodial ownership of the land, fee samples wereconsidered to be held of the Crown by tenurial grant. Even if it cannot be denied that the Englishproperty law has played a role in the development of property law in Australia, it will bedecidedly inaccurate if the present law of property in Australia is described as merely derivativeof English law.1Introduction: There are several species of property that are unique to Australia, along withstatutory mechanisms used for regulating their acquisition and dealings. For instance, thestatutory tenure represents a unique Australian development. Similarly, the Strata title was alsoconceived and implemented in the jurisdictions of Australia. The native title, in its present formthat is present in Australia, even if it is considered to be influenced by the course adopted inother Commonwealth jurisdictions, is basically antipodean concept. As a result of thesedevelopments, several academics have argued that the present day concepts of Australianproperty law are basically different from their English counterparts and their predecessors. It hasbeen stated in this regard that the real property law in Australia is peculiarly Australian.2 Itcannot be properly understood, unless it is recognized that the basic concepts of Australian laware different from English feudal system.1 Kelvin F K Low, ‘The Nature of Torrens Indefeasibility: Understanding The Limits Of Personal Equities’ [2009] 33 Melbourne University Law Review 205, 2062 Richard Wu and Mohd Yazid Bin Zu Kepli ‘Expedition of Torrens system in the common law world and its Asian development in Singapore and Hong Kong’ (2012) 2 Property Law Review 99, 102

EQUITABLE INTERESTS AND TORRENS TITLE 4Even if there is a controversy present regarding the basic character of Australian real propertylaw, it cannot be questioned that the Torrens system remains its core element. The system wasintroduced for the first time in South Australia in 1854. The Torrens system of title byregistration results in the creation of incidents of land ownership of a different nature ascompared to the ones recognized by the English model. While in England, the existing paper titlecan be registered for the purpose of record keeping, but the legal title is already present. But incase of Torrens jurisdictions, the title to land is itself derived as a result of the act of registration.3Therefore it has been stated that the essence of real property law in Australia is the Torrenssystem. This system needs to be considered as changing the nature of interests in land. Under thissystem, they title to land is derived from the act of registration. It is a system of title byregistration and not the registration of the title. Even if it has been suggested by somecommentators that most of the real property law in Australia has been simply adapt it fromreceived law, Torrens system can be described as a novel development.It is not surprising that the law property in Australia is radically different from the law ofproperty in England. The reason is that in case of different jurisdictions there were hugelydifferent social, economic and environmental conditions present after the Australia is federationin 1901. Therefore, even during the 19th century, there was an era of rapid colonialization andinland expansion started to take place in Australia as a result of which development of uniquestatutory tenures and bureaucratic procedures were developed for the registration of land title.However, the move towards a statutory system of registration of title was not unique in case of3 Tang Hang Wu, ‘Beyond The Torrens Mirror: A Framework of The In Personam Exception To Indefeasibility’ (2008)32 Melbourne University Law Review 672, 672

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