Torrens Title: Registered and Unregistered Interests

Indefeasibility of title is the most fundamental feature of the land registration system in Australia. Under it, the State guarantees the title of those with a registered interest in land, to the extent of that interest. The foregoing is trite. But the principle is so important, and adherence to it so essential that registered title is able to be challenged, under the legislative provisions in each of the States, only in the most exceptional circumstances. The Torrens system has enabled conveyance with certainty in Australia and, even though there may be occasions where notions of comparative justice may seem to have been transgressed, it is essential that indefeasibility of title is not undermined. Introduction Rothman J’s statement, above, provides the context for and the focus of this chapter’s examination of registered and unregistered interests under the Torrens title system. What is indefeasibility? Why is it essential that indefeasibility of title is not undermined? How do the Torrens title systems that operate in Australia ensure that it is not undermined? The answers to these questions require a consideration not only of specific provisions of Australian Torrens title statutes, but also of general principles of land law that were, in large part, responsible for the birth of the Torrens title system. This chapter assesses the extent to which the Torrens title system either replaces, incorporates or has affected and altered the general law in relation to registered interests and unregistered interests in land. Torrens title legislation is unavoidably ‘situated in and deeply affected by’ the general law principles, as illustrated in the body of Torrens title case law. The extensive case law that has developed by the courts reflects the need to deal with what have been termed ‘bijural inaccurac[ies]’ that are inherent in a system of registered title. Bijural ambiguity is, in O’Connor’s view, ‘an underlying cause of instability and incoherence in the rules of registered title systems’. An understanding of this instability and incoherence is therefore important in understanding registered and unregistered interests under the Torrens title system in Australia. In terms of registered interests, this chapter considers the origins, definitions, scope and boundaries of the key foundational Torrens title principle: indefeasibility of title. It considers its exceptions and focuses, primarily, on the fraud exception and the in personam exception.