LLB220 Lecture Notes - Lecture 7: Eviction, European Court Of Human Rights, Interest
Week 7 – Systems of Landholding in NSW
What Is Title?
Term used in multiple ways
• As documentary or other indicia of ownership
• Referring to ownership itself
• Systems of land rights.
In latter sense, four types of title in NSW today:
• Crown land.
• Native title.
• Old system title
• Torrens title
- Strata title is a form of Torrens title ownership governed by particular statutory
provisions
Crown Land and Native Title
What is Crown Land?
• A form of land owned and managed by the Crown
- Includes beaches, roads, crown reserves, parks, and cemeteries.
• Distinct from private land owned by government entities, e.g. a house seized
because of unpaid taxes – still held as private land
• Extensive lands in western Australia
• Approximately 42% of land in NSW is Crown Land
• Governed by Crown land statutes (e.g. the Crown Lands Act 1989 (NSW)):
- ‘egulate the Cos poe to dispose of unalienated land
- Cotol the Cos aility to use and deal with land
Native Title
• Collectively held, generally exists over Crown land
• Extinguished by grant of land in freehold
Old System Title
• Adopted from England, existed before Torrens
• Title held under the principles of general law (hence, sometimes referred to as
geeal la lad
• Transferred via deed – signed, sealed and delivered
• Significant problems due to issues in record keeping, therefore there were
incomplete and uncertain titles. Old system replaced by Torrens
• Crown grants in NSW made prior to 1863 are under Old System title, unless
converted to Torrens
• Old System Title is being converted to Torrens title:
- Land and Property Information (LPI) Annual Report 2010: Approximately 36,000
parcels of land are still held under old system.
- More recently -- approximately 1000 parcels of marketable land known to exist
in 2017 (Butt).
find more resources at oneclass.com
find more resources at oneclass.com
• Some Torrens title land retains characteristics of Old System Title if the title or
boundaries of land are uncertain, despite conversion (called limited or qualified
folios).
Old System Title Depended on Establishing a Chain of Title – biggest problem
• In order to prove you had valid title to the land, you had to establish that the person
who transferred the land to you themselves had valid title. You had to go back
through a chain of title
• You have to go back to every link in the chain, if one link is invalid, you no longer had
valid title
• Each transfer must be valid for you to receive valid title to the land
• Example:
- Crown Grant to E
- Conveyance from E to D
- Mortgage from D to C
- Discharge of mortgage from C to D
- Ds ill ad gat of poate of Ds estate, passig lad to B
- Bs pla of su-division
- Conveyance from B to A
- Conveyance from A to you
• Good root of title:
- Presumption that if you can go back more than 30 years and find something
dealing with your land, you can presume there is good chain of title
- Gateway Developments Pty Ltd v Grech “‘ N“W at : A
instrument of disposition dealing with or proving on the face of it (without the
aid of extrinsic evidence) the ownership of the whole legal and equitable estate
in the property sold, containing a description by which the property can be
identified, and showing nothing to cast any doubt on the title of the disposing
pat.
- Conveyancing Act 1919 (NSW) s 53: Good root of title means going back at least
30 years. This is only a presumption
Torrens Title
• Torrens system of title was created by Sir Robert Torrens (1814-1884)
• Reforms first introduced in South Australia in 1858
• First NSW legislation – the Real Property Act 1863 (NSW) which came into effect Jan
1st that year
• Current legislation: Real Property Act 1900 (NSW) (RPA)
• Administered by the Registrar-General who keeps the registry
• The registry is the heart of the Torrens system
• Torrens title is a system by which your interest in land is registered and that has legal
consequences known as indefeasibility of title
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find more resources at oneclass.com
Torrens Title: Indefeasibility
• Barwick CJ in Breskvar v Wall CL‘ : [T]he Toes sste ... is ot a
system of registration of title but a syste of title egistatio
• the egisteed popietos title) ... is not historical or derivative. It is the title which
registration itself ested i the popieto → if you are registered, your title cannot
be attacked
• RPA, s 42(1):
- Notwithstanding the existence in any other person of any estate or interest which
but for this Act might be held to be paramount or to have priority, the registered
proprietor for the time being of any estate or interest in land recorded in a folio of
the Register shall, except in case of fraud, hold the same, subject to such other
estates and interests and such entries, if any, as are recorded in that folio, but
absolutely free from all other estates and interests that are not so recorded
• The key exception is fraud → registration acquired by fraud by the person registered
can be invalidated. However, an innocent person is protected, even if they gain a
title acquired by fraud
• Unregistered interests can exist under Torrens, but they receive very limited
protection
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 7 systems of landholding in nsw. Term used in multiple ways: as documentary or other indicia of ownership, referring to ownership itself, systems of land rights. In latter sense, four types of title in nsw today: crown land, native title, old system title, torrens title. Strata title is a form of torrens title ownership governed by particular statutory provisions. What is crown land: a form of land owned and managed by the crown. Egulate the c(cid:396)o(cid:449)(cid:374)(cid:859)s po(cid:449)e(cid:396) to dispose of unalienated land. Co(cid:374)t(cid:396)ol the c(cid:396)o(cid:449)(cid:374)(cid:859)s a(cid:271)ility to use and deal with land. Native title: collectively held, generally exists over crown land, extinguished by grant of land in freehold. Old system replaced by torrens: crown grants in nsw made prior to 1863 are under old system title, unless converted to torrens, old system title is being converted to torrens title: Land and property information (lpi) annual report 2010: approximately 36,000 parcels of land are still held under old system.
