Western Australian Torrens System - Essay Example

Transfer of Land Act 1893 (WA) Student’s Name: Professor’s Name: Subject Code and Name: Date Submitted: Outline Torrens system and the native law……………………………………………………………4 Challenges to registration under the Act………………………………………………………5 Indefeasibility of title………………………………………………………………………….7 Importance of registering under the Act………………………………………………………7 Conclusion ……………………………………………………………………………………8 References …………………………………………………………………………………9-10 Transfer of Land Act 1893 (WA) Under the Torrens system people in Western Australia are required to register for their land titles and deeds. These are meant to show proof of ownership and prevent a lot of problems associated with registration. It is therefore very important for land owners to have their properties registered. Many people fail to see the kind the security provided through registration and therefore tend to take the titling system for granted. The government considers this system important and in Western Australia, it is provided in the Transfer of Land Act 1983 (WA). Locke (2007) argues that for more than 140 years, Australians land owners have experienced security and certainty through the Torrens system1. However, it should be noted that you can only enjoy the security that comes with owning land if it is registered and you have certificates for that. The land registry in Western Australia helps to validate all land titles for people who have registered. Thus, when land is sold and ownership transferred to a new owner in the state, this is supposed to be in accordance with the Act. It is also the duty of those responsible for registering land ownership to be committed to providing this essential service. This is because a defect in the process jeopardizes the efficiency of the whole system. This is especially during transfer of land from one person to another as it has to be registered under the name of the current owner. When the process of registration becomes elaborate and tedious such as when people have to take a long time looking for missing files, people tend to ignore the procedure of registration. When this happens, a lot of problems may arise especially during court cases when they have to verify ownership or use of a piece of land. This means that registers have to be effective in that people can get the files they are looking for with ease. Torrens system and the native law The National Native Title Tribunal (2009) notes that the native title determines much of the land claimed in Western Australia. The native title still provides some level of rights to ownership of land for the owners and this was established during the Western Australia v Ward 2002 or the Ward case. The case was centered on the use of the Native Title Act 1993 as well as aspect of extinguishability of the rights and interests2. Several other cases have been advanced by communities in Western Australia with the aim of having their native titles determined. In the case of the Bennell v Western Australia [2006]3 which involved six cases, the sixth case identified as Single Noongar application involved the Noongar community which was claiming to have a native title for the land in the south west. The community claimed that some of its people still existed with complete conformity to the land laws and customs used since 1829 to which the court sought to establish as well as the existence of such a community in that particular year. In providing judgment, the judge ruled that the community still had native rights to the land they were claiming. Similarly, the case of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia and Ors4 sought to also have a determination of native title for their lands. Judge Black CJ established that the people of Ngaanyatjarra Lands were in order in making such a request. These examples show that the Torrens system also recognizes the unregistered interests which are protected under the Native Title Act (1993). Challenges to registration under the Act The Transfer of Land Act 1893 specifies requirements and conditions under which a person in Western Australia may seek to register a piece of land. Section 20B (1) specifies requirements that need to be produced to the Registrar of land to be recognized under the Act. Here, any documents that may provide necessary proof can be availed to the registrar for inspection. This is usually followed by a notice so people who have an interest or a claim in the land can lodge caveat. However, the placing of advertisements does not mean that all people who have claim to the property will get to see it hence people may end up registering for land they have not legal rights to. Hunter (1964) writes that a registered proprietor’s misuse of land can be prevented using the caveat system. Nevertheless, those with a say to the land may still end up losing rights since as Hunter writes, there are no rights attached to caveats. People who occupy land with discrepancies especially in boundary or position can request to have certificates that show the correct details. Thus, they do not have to hold titles that do not show the correct details of the titles they hold as the Act provides for such to be corrected in Section 26 and 27. However, it is required that the person state clearly the reason for the discrepancies and when there is no valid reason to this, there is a possibility of losing rights so some piece of land. The Act also enables people who have leased land for several years or for life to bring them under the Act. It is quite easy to lose rights to a leased property as happened in the case of Lighting By Design and Parkworld (Wingate, 2010). Apparently, Lighting By Design’s failure to register the lease made them lose rights after the owner sold the property to a different company who later demanded an increase in rent. People who own land in different places are saved the difficulty of having to find certificates for all the pieces since they can simply have a single certificate for all of them. This is provided for in Section 49 of the Transfer of Land Act 1983 (WA). Here, the land owner may seek one title as long as the pieces of land can all be identified in one deed as required. Not all of the parcels have to be mentioned in the certificate and hence the certificate is still valid with some omissions. Thus, this can easily lead to fraud since someone can claim land with the premise that it does not appear in the title hence it is not owned. Successful applications will be followed by certificates which according to Section 48A (1) have to be in an approved form. This certificate will outline important details about the land such as the extent of the land which would be shown in a graphical presentation. Things that must be included in the certificate to make it valid according to Section 52 (1) include the reference number and the seal in case of paper titles. However, many people may not be aware of how a valid certificate should look like and the possibility of getting a fake certificate is high. The Act makes it possible for even minors to register pieces of land that belong to them. This is usually indicated on the certificate in terms of age and this can be found in Section 59 of the Act which also provides for the disabled. According to the Section “…Registrar shall state on the certificate of title and on the duplicate certificate of title (if any) the age of such minor or the nature of the disability, as the case may be, so far as is known to the Registrar” (Transfer of Land Act 1983 [WA]). However, in case of a minor, there needs to be someone who understands how the system works to ensure the certificate given is valid and shows all the portion of land that belongs to him/her. This Act has been used in Western Australia for a long time but does not mean that it is with no defect. Section 137 of the Act provides for someone who thinks that he/she has a right to an estate or interest through mortgage or other to stop registration or transfer to another person. However, Boyle (1993) is of the opinion that the terms estates and interests may be confusing since they have been used frequently when they have different meanings. According to her, the Section fails to mention the different categories if equitable interests. Indefeasibility of title The indefeasibility of title is described as the immunity that is provided to the owner of a registered land against any claim to the land. This principle has been at the centre of and in use in the Torrens system from the beginning (Harding 2007) and provides immunity through registration. However, there are exceptions to indefeasibility which are applied in many courts in Australia although the principle is supposed to be applied solemnly. Wu (2008) asserts that indefeasibility is affected by a personal exception which has been provided for a Crown land is subject to many matters among them being exceptions. Importance of registering under the Act The main reason for having land registered under the Transfer of Land Act 1893 is so as to be recognized as the rightful owner of the puppetry whether it if freehold or for lease. This is because under Section 48 (1) of the Act, there has to be a register containing all certificates issued together with all the certificates issued before the land was brought under the Act. Thus, this will provide evidence in case of need. The registry is supposed to be stored and maintained well for the purpose of retrieval. Section 48 (3a) ensures that records can be replaced when they are damaged or for any other reason require replacement. The replaced files are required to have the same content as the original ones according to Section 48 (4). The Act provides that the certificate of title issued may be used to provide conclusive evidence when need be. The owner of the land is therefore free to produce the certificate to prove that he/she is the legal owner under Section 67. In Section 70A, there is provision for the local government or authority to file for notification of any interference with the use of a property which the owner has to be aware of. This type of notifications may be removed where it is no longer applicable where the Registrar can be requested by the proprietor or the authority that filed for the land notifications to remove it. However such incidences also create room for fraud cases where the authority may take possession of an individual’s property. Conclusion The registration of land under the Western Australian Torrens system provides for all the land tenure systems to be incorporated. This ensures that every land owner within a jurisdiction is entitled to be a legal owner. Registration is meant to provide land conflicts and land can only be registered under the name of an individual of group of there are no other people claiming ownership of the land. Thus, to get rid of any defects in the land system, the best solution is always to have a form of registration. Certificates can be issued in different media depending on the proprietor and the Registrar but the good thing is that the records will always provide copies in case the owner loses a duplicate copy or gets damaged. References Bennell v Western Australia [2006]. FCA 1243 (19 September 2006). Statement of Justice Wilcox. Retrieved from Boyle, S. (1993). Caveatable Interests - the Common Lore Distinguished. Murdoch University Electronic Journal of Law. Vol 1 (1). Retrieved from Harding, Matthew (2007) Barnes v Addy claims and the indefeasibility of Torrens title (Australia). Melbourne University Law Review. August 01, 2007. Hunter, B. (1964). Equity and the Torrens system. Retrieved from Locke, M. (2007). Challenges facing land registries into the 21st century – an Australian perspective. Registering the World conference – Dublin, Ireland – September 2007. Retrieved from Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia and Ors [2005] FCA 831. Tang, Hang W. Beyond the Torrens mirror: a framework of the in personam exception to indefeasibility. Melbourne University Law Review. FindArticles.com. 29 Mar, 2010. Transfer of Land Act 1893 (WA) (CI). Retrieved from Wingate, C. (2010). Leasing law in Western Australia. Law Management. Retrieved from Wright, L. (2002). Part one of an analysis of the Ward decision: Western Australia v Ward. Indigenous Law Bulletin. Retrieved from Read More