An overview of the concept of indefeasible Torrens title, looking at the Queensland Torrens statute.

1. Indefeasibility Principle and
Limits to Indefeasibility
Torrens Title

2. Torrens: statutory framework
The register
Interests
Indefeasibility Priority
Instruments
Registrable Effect

3. 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

4. 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?

5. Registration
Instrument
lodged
Instrument
registered
Interest
created
Identify the relevant provisions in the LTA

6. What is the nature and quality of
the interest created?

7. Does time matter?
Fred owns
land
F transfers to
Joan
Joan borrows
$ from bank
Instruments required:
1. Transfer of title: Fred to Joan
2. 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?

8. 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?

9. Indefeasibility
Statute: 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?

10. Invalid interests?
Fictitious
person?
Dodgy
process?
Fraud?

11. 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

12. So…does invalidity affect
indefeasibility?
Chain of title The register

13. How have courts read the
Torrens statute?

14. Explain the courts’ interpretation
of the statute

15. A SELECTION OF EXCEPTIONS
TO INDEFEASIBILITY
Torrens - Indefeasibility

16. Locate the exceptions to indefeasibility
Read the LTA carefully
Are there exceptions outside the LTA? How might these be
dealt with?

17. 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.

18. 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.

19. 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

20. ‘In personam’ or ‘personal
equities’ exception: what does it
mean?

21. ‘Short lease’: interpret

22. 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

23. Look outside the LTA:
inconsistent statutes
Other
statute
LTA
Common
subject
matter

24. 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

25. Consider: implied repeal??
Real Property
Act 1861
Acquisition of
Land Act
1967
Acquisition of
Land Act
1967
Land Title Act
1994

26. 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

27. Overview
How to create an interest in land
Nature of the interest created
Quality of the interest
Boundaries of that quality (exceptions)
Making meaning of the statute: text, context, purpose