Torrens title system

A system for the registration of titles to land, originally introduced into South Australia in 1858–60 by Sir Richard Torrens, an Irish emigrant to Australia, who devised a system for the registration of titles to land based on the method used to record ownership interests in ships as used by the British Ship Registry. (The system was also based around other systems of land registration, notably a system used in some Hanseatic towns, and possibly adopted other forms of land registration as a source of reference.) With modification, this system has been extended to the other Australian States relacing a deed registration system that previously operated in all States (nonetheless the system does not operate universally in some States, especially as land transfers prior to the introduction of the system were not automatically brought within the system; this was most notably the case in New South Wales and Victoria, and the system varies between the States and territories according to the applicable legislation). The system has also been used as the basis for land registration in New Zealand (from the 1860's), most provinces in Canada (starting in the 1890’s), the Republic of Ireland, several other English-speaking jurisdictions and areas in the US (notably throughout Hawaii and Massachusetts, in Cook County (Chicago) Illinois, and in a limited form – being entirely voluntary and applied to less than half of all parcels of land – in Minnesota and Ohio). Although several jurisdictions were reluctant to accept that a mortgage could be secured merely by recordation. The Torrens system also formed the basis for the system of land registration first in the 1860's adopted in England and Wales and subsequently in Northern Ireland.

     In Australia, when the system was first applied, all land alienated from the Crown was recorded and other titles could be registered voluntarily. Once a transfer was completed the applicant brought the deeds to land registry, together with any applicable survey plans, and a statement from an 'examiner of titles' as evidence of the title. Once these were approved the title was recoreded and no further legal work was required to establish a root of title. The registry established a record of title and a copy of that record was provided to the owner. The system is based on the principle that title to a parcel of land cannot pass, and no encumbrance can be enforced, unless it is noted on a land register; registered title is then deemed to be absolute and indefeasible, i.e. it is guaranteed or effectively insured by the State, and as a rule the registered owner maintained his title in the event of error or fraud. In addition, a mortgage was recorded against the title thereby alleviating any question of the title being transferred to the mortgagee and then reconveyed when the loan was repaid. The Torrens system, or any similar system, provides for the registration of land titles, as distinguished from other systems that merely provide for the recording of evidence of title, and all encumbrances that restrict title, in order to act as a form of notice to any third party who may take an interest in the land. Under the Torrens system the actual transfer of title is effected by registration, i.e. the cancellation of the old certificate and the issuing of a new certificate in the name of the new proprietor. Title deeds are replaced by the official record of the land ownership. This record is evidenced by a Torrens certificate of title (or simply a 'Certificate of Title') issued to the land owner by the 'Registrar of Titles'. The system also provides a means for recording in a systematic way all liens (public or private), court orders, easements, restrictions, encumbrances, leases and rights and claims of third parties (especially those in possession) that affect every recorded parcel of land. As a rule, any item that is not recorded, and therefore not noted on the certificate of title, is not binding on a bona fide purchaser of the registered land, although most recording Acts provide for exceptions in the case of minor interests such as short-term leases.

     Although a variant of the Torrens system has been adopted in every State and Territory of Australia and in New Zeland, it is by no means uniform and there are significant differences on such matters as forms of co-ownership; the effect of forgery; the treatment of volunteers (those who receive property by gift); the recognition of claims based on adverse possession; the division between the requirements for registration of formal and informal lease; and the recognition of implied easements and restrictive covenants. The Torrens Acts that are currently in force in Australia and New Zealand are the Real Property Act 1925 (ACT); Real Property Act 1900 (NSW); Real Property Act 1886 (NT); Land Title Act 1994 (Qld); Real Property Act 1886 (SA); Land Titles Act 1980 (Tas); Transfer of Land Act 1958 (Vic); Transfer of Land Act 1893 (WA); Land Transfer Act 1952 (NZ).  Cf. old system title.  See also caveat, land recording^(US).

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