LEGAL RESEARCH FOUNDATION INC.

LAND TITLES REFORM

Preventing Riding Over the Register

by Dr Robert T.S. Stein LLB. (A.N.U.), LLM. (Dalhousie), Ph.D (Syd.).

Senior Lecturer in Law, University Pl ,~yd~e,y

Computerised Land Title and Land Information

by Andrew G. Lang LLB., LLM. (Syd.).

Associate Professor of Law, MacQuarie University, N.S. W.

PUBLICATION No. 22 (1983)

ISSN 0111 - 2015 ISBN 0-908581-31-9

84 16107 UNIVERSITY

OF OTAGO

LIBRARY

The Le~Jal Plesearch Foundation is inde~xli?Jcl !o Dr Robert Ste!n @nd /!-,sso-fm consent to the '!vJo papers v1rl,ieh

wen" to tln,e Australasian Univen,ities Lav, Schools Asso-of P.uclKland in August

"'198:3. lr1 NE1w Ze,alancl, lz1.11d title is urn:IBrthe Land

Transfor Act 1952, but over me,ny yearn it has lc1ecome appar,enl U,at there ar,a serious shortcomings in the or 1:lie informatlon r::ontainecl on iand frtl,es, witl, consi::;13rable risks to th,e s,2curilty of tiUB arisinr;,J from interesri:s a.nd other LffllV)ied Related to consider-ations ol n:'l'rriaval systems, i?sndi a generZ\I he!ieI tr1at teGhnolo:;iical advances may pro­vide an answer to ti1e improved o"! !itle details am:! access to such detaii:o,,

The tiivo pap,sr:: contalnec! 111 this boo!det a.ra re1,,ava11t to GUIT:snl land iitle problems in focusing upori the for of the systems. The in Dt Stein's paper is ol i11t,erest in ,ieia.fron to land n;J~Jis1raticm in 01th12,r countries, and the. cornpu"ter ln'formation discusser! by 1b1ssocia1e Pm!<essor ,establishes 'th,a feasibility of e!actronic sys1:sms.

Thi.a two authors are to be greatly commend eel for their thorough rnsesirche'E and contribut.ion on a matter oi fundamental: legal and social

Dr f(,1mu'"iiaH1i i~,. F'a!meu' Faculty o"i Law

of Auckland

1988

iJ1REVENTlhlG HIDING OVER THE r::;:EG!S'iER Du" !=.):ot.h;11't T.,l Slekll

CO[VIPUTER!SED LAi\!D TITl_E /\ND LAND 1~·.JF()F:;:i\11ATIO!\I

p, 1

/"'s:r.oci;aifi<e Protes~,Di" 1!11,n!r,1~·t11 Gi. p,

i PREVENTING RIDING OVER THE REGISTER

Dr Robert T.J. Stein LLB. (A.N.U.), LL.M. (Dalhousie), Ph.D (Syd.), Senior Lecturer in Law, University of Sydney

,., ''"'""u"""" rr_J_atters~ to nan1f: ,PL fev;1. ".these 11.CfVt;

nt1n1erous author8 1:u1d fe-~11/ ha1ve four:1d a]ry-11a}1,J_.e 1n their e1;du:sion. 1 To 'these fftay be added tho,,e ini;;;n,sts which cam:ot be

m,,fr.c-,r,,rl and of th,:: "'curtain", in com-it is not uniforn1.2 This artide will concr:,ntrate its

interest3 under ······"··· . , excluded from the benefits

suggests: those which are cont':ltined in the

result fron.1 judkial of those have arisen as a resn!t

ovtrborne the H ir, a fEiC[ that the ,.,.,·,ch•n,,

of any recording on the

areas, as !:he

Act:s thenrnelves :,u1d which such as rights in persmuirn.

of later stmutes v<1h\ch have of title.

to the ex•,.ent of the intefest The eons,equence is th,rt a of lands, registered

1,mdef a of "title , doeB noit have that ~ecurit.y ,Hhich nlatute purports to granL That is to say,, the interest which 2tatute has may be: encmnben::d without 11odficatio:n upon the In other th,ere 1,1 fouc1d upCin the Register. The lirn.i.:tation of s;,ich a Register vms. explained Sir CJ ohn a of England Wales, in 1924 and. itc be applied presen,, ~tate of the Register New South 'Waks:3

"A regisier is rather like a boat with a kak in it. You may no,t be drowned but you are sure to be uncomfortable. The must be final and condusive in an eases and for an purposes, or its is din1inished as a alternative to the present system of conveyancing ,Nith its high

and a cardinal defect of which 1s that the hidd.en from babes is reveal.ed -~ for

a fee'' This arilick:. V/ill examin~ !he

Torrens Israeli system, th,~ (ierman and

this overall ,;o,ndusions will be drawn upon

to th.is

interests. gre:lv in En a.d hoc ]T1.anner 5 fron1 th,:: ti:irnie (Jf tbe , i.n Somh Australii,1o At that time there Vh::r~; few rmch interest,;:.

llD'-;;.re·vt~~·J 2.ince then J:.uive: }::..n is El statute 'Nh.lch tak·es :Hnd f,,:ir purposes and where this fact i:s cot IeccTded upon the

Tht

of Litle. The tide is. d,f,;;as.ibl,e to the ext,cnt of su.ch ::m int,~rest''

basis for these intensr,ts is found eontained in the R.eaI ,,_.,..,, ... ,-,." :;Jr the well: knmvn

in rrn :.:1vir o us here is unwarranted

rcduc~ion of :mn1e or n1Pst cf thes,;: int,:;rests 'Nill be "'Co1nparisons :md Conclmions".

tb.1::.re are in _f1t:i'sona;-rl '}Vfi.ich n1'.l.y include u1lerests s11ch. as fraud and interests e:3tabhshed

cannct use; the some equity he has cr,~ated

as may he found and enforced

~~econdly, there a"e the res,z.;rvations contained in the Crown Grant Baalrnc.in Rnd ·1t,vriters on the T'orrens Gystein said:B

"H is the add to a certificat1;; of title a aotifica'tion drawing to the more salic:nt reservations and conditions in the grant. These

he nor should it be assm11ed that a search of 'Lb_,;;: grant, Jn a

it was ,focide.:1 to omit sorn.e of the kss to and sliver, vvhich

4

111et;3J::; ren1ain_ th 1e re.;;,:;;rvatio:n. 1\Tciti.ficaticns in the event of the land CtP~ a1so orn.itted ... ·;~

any grant of forfeiture of the grant

or to be aurifero'!..1s

record of the more sal.ier:t of thcs·8 matters 1u1y be found on 'the n1. tb.e ·second since the

would faH 1:vithin arKl. not here,

,unount to an exhaustive :,W.t;ement of aH tbe cJnt::nts of the grant not even. th,c: starting-point of frcle xna:; be without a search of the

grant., the,: this seems Io be a aim of tittle l:o avoid 11 istoric

under this of those who the systems

enec_:rnpa.sses b,oth I-Ierey -~he '\'Verd (,·Jinttri':'.~t')~

'''nege~tiv~n int~re:5ts.'.P Thtir nat1J.re that take effect over regist,~n:d v1ithout

The way in which Duch inte,·c:st:, overri,i:':.e U:1-:'~ foHovi:,: it fa a of -in common that a later

general statut?; ::i,;c1d that a J.:1ta special statute overrides an earlier special or

a st.atut.•~ which fit" th,ese

The Property t2,.v Revision Comrnittc>e ofNei;v :south Vv'ales into mter,~srn the ·Real of

were cre"at1;1°:es. of the twentieth century,w On th;c, conce:rr1 {rver th·t~HJ 'ii_rnis in the lH13'il

a write! on ithe Torrr~PS rystem in South c:aid Hrnt they Real Act', X-i[e obst;rved th::it it was

1 In r.anctioning their in :South= }itJ.s tern

.lBoat,d J.BtJrdr iC!l S'o,uth .!lustralia12 gav,e Hc,~]Jce to th.cir continued growth ',.vhicch hz,s occurred and ai an r:c1te.

There are tvvo recent decisions in the area, In P't.aiten 1'J.·7arrin= Shire Coum:ifi3 the title to the subject land was registered under the New

~.:c1Hh ·wales Ton;~ns A,ct. Under the Local Government Act 19 section hmd was yested in the local council for the purposes

There the , to the fact that th,c of the frrnd had vested in the

Board case ;;rnd said that the later of th,~ Lo,;b,J Governraent lv;t overrode the of title secured

5

Thorn({!,.' 111Iiller Vo ,;.~•firdsfer

"~old';, systern larn.d had h under (b_,f: I'1Iiev1 z,~ahind T·otrcns frorn the reserve.ti on of minerals to the Cro•wn. The whole tr.an;,ferred to Hie

a declaration th;;u -~he -:Crovi/n ,Na.2 r11ct enti~Jed to rnint'; scheelhe on no, refornc:d to as the cer'iificate

""''"''"'S ,vith Aet

enacted in thf: La11d "fransfer Act Lord Guest sa;id that it t.here to be any the Torrens

/\ct for this resuit to, ·be achieved. lYut thnt frn111 the

of these pr:i.nc-iples has !Tieant that a nu.rnber c1f rr~atter:~ hi land are not recorded nn the ·rorrens '"··'"'""·"'

iB oft.er' unaware of tl1 eir foll e;:t:nt. ;5 to this fact H1 the d1c L,:·N Revision Committee

r,es tri,etcd have beer; able to ,woid it

seee n1 /uistrnlia. Th:s whs c,.:.nducted l TV J. Bs1alrnan 2,nd C.C. Nior1-ahan.'1. reccn.11n1endatifJns 'P/as that d1ere ::.d1ould be a regi::.te:r 01f the Torrens syE.tern s.2,id that the should bee recorded the

itself and in resp:cct of "old" system land they ,;honld be recorded in the (h:neraii of The propcsals h:1ve not been

3B s1t1J.l

S:~)lUtion"

IK, :e i:s ccnforred in a sirnllar >Nay 10 t.he lorr;;ns ~yst;;m, ex-:::ept that

6

there is no assurance fund and the extent of registrable interests is slightly different.

Overriding interests, of both kinds delimited in the examination of the Torrens system above, exist in the Israeli system: they are overriding either because they come within the provisions of the Land Law as express excep­tions from the principle of public faith in the contents of the Register (indefeas­ibility), or because they are created by statutes which override the general provisions of the Land Law (these principles have been outlined in the previous discussion). A list of the overriding interests contained in the Land Law itself are: ( 1) as the benefits of registration attach only to a bona fide purchaser for value relying on the contents of the Register,18 all interests in land subsisting at the time of a purchase which are not bona fide or where the new registered proprietor is a volunteer; (2) interests acquired by succession;19 leases not exceeding five years;20 interests capable of acquisition by limitation, where possible21 (it has been accepted that there is no place for these in a system of title by registration). This rule is limited to settled lands and does not apply to unsettled land which operate under the general principle that pres­cription is to be applied22 (settled lands have gone through a formal delinea­tion and are then recorded on the Register). The basis for this view is that the Knesset maintained that a person who claims an interest in settled land by prescription knows that he claims land which he does not own. There is one exception and it is found in the Land Law, section 94, which recognises that an easement may be acquired by long user for a period of thirty years. The list continues with servitudes acquired through use from time immemorial;23

pre-emptions between spouses and heirs;24 the right to support.25 As regards interests arising from other statutes: leasehold interests in apartments or business premises for a term not exceeding ten years;26 the right to light;21 and State charges against land.28

However, as regards the last of these it is the practice of the Registry not to register any transaction until proof of payment of all financial charges is given to the Registry and this includes such matters as the payment of capital gains tax by the vendor, property taxes and local government taxes and payments.29 It may be seen, therefore, that the list is not extensive in comparison with the New South Wales system and, in many cases, interests are protected by procedures adopted by the Registry to maximise the value of registration. It is also of importance to realise that the Minister of Justice may authorise the entry of other interests, by way of caution, such as land use planning and building restrictions.Jo

Title bx Registration in Germany and Australia

Title is conferred by registration as in the Torrens system but there is no assurance fund and the extent of registrable interests depends upon Roman

7

are a •Nare of the ···,rnde of c,ome of the more~

fhe fa.ct that i~ made

syste:-rio.s. the G1?'U?u.lbuch tho3,e \Vhich

re.cerdrd. ()ther int.e:test,; rnay ,;~xist and law restrictions to

basis and not upon the a~ ar,i ,~xcluded from the ,,ystem.

of such matters and a shcrt examination cf the:·~e vvbieh" an: effect.i:/e

cm ihe Grundbuch. intetc~;t 1Hhic.h 1nay nffe:et title is: the 1~r.1sehold. B,,1sed. on

21.nd the fact that but for O!Ie

should t,Jc,:; free from leaseho,ld ,cif :t

Dv,(:;r and

Ha.ble as guaxr1.ntor for he umkrtock and this secures the

hazard in

l\a.s "ti°Jc:;:n. aba.n.d on.,,:.:·:1 i~1tc, "Yvhat is tr~nte:..:r:11ount in an i:ntercst 3:n ln.nd:. /~ whe!foor the to the tc:mnr"s ofkas.ehc!d har:: been relaxed: the ,.,cu,u,,"·'" be n::·,;on.led.32

Th,cnexl: n.r1s.e aJ. ftii e1:1.cu.1nor;:;,nee or

of la vv it prevent:~ 11_1,ertg:agee~ frorn t.J]ic:ir '~'lh,:.~r~ ~cheTe ha:::. :been a sr~Je, I-IeTe ~,ole purp,o5e fa: !.o retain the of interests of mortgagees. and

The of lon:l authoritie~ to rates, taxes and land tax and planning matters are not recorded in and t.his flows from the exdusi.ve list of interests which these do not of being recordecL The inter,est:1 tak,~ effect as protection exists in f:r1mF of a 2J. the time of autheni:ication and attestati::m of docG­meil',s of trnr:sfoL before the ,:k,cuments must be authenticated anc1

his duties to ascertain that have been al.though nr:;.t ,·egisterecl, rates rm1y be recorded inEdtutir::cl1 d1,e FinaLnce 1\]lffic,~ but th_is is rare cu the rates of overriding sts,tute and H seem.s

8

that the procedure would be used only where it has become apparent that the property is being disposed of in such a way as to avoid payment. The chance of this occurring is also unlikely as a notary would not authenticate a transaction if taxes were outstanding. In addition, a purchaser would rarely be troubled by outstanding rates as he can be required to meet only a maximum of three years arrears which, in relation to the value of the land, is usually comparatively small; and this liability assumes that the default ( on the vendor) has not been avoided by the procedures mentioned already.

The recording of recurrent charges, especially rates, would be an impossible task in Australia for Dr Hoyer, a former registrar at Modling, indicates that most taxes fall due quarterly and monthly.35 This should be contrasted with a special non-recurrent rate or tax referable to a particular project. In this case the levy will be recorded on the Grundbuch; for example, a tax for a water supply or electrification scheme.

Unlike the position in Germany, planning restrictions are recorded in Austria and there is also cross referencing to mining and railway registers (formal registers) in either the property or encumbrances portion of the Register. The effect of the recording is that the interest comes within the principle of public faith in the Register.36

In Germany, by way of comparison with Austria, the list of exceptions from the principle of Buchungswang (obligatory registration) is greater. There are two major exceptions: first, parcels of small value used for the benefit of adjoining properties and which are owned by the proprietors of those proper­ties37 and, secondly, properties owned by the Bund (Federal Government), the Lo.nder (States), municipalities, municipal associations, churches, monaster­ies, schools, public ways, waterways and public railways.38. Such interests will be entered on the Grundbuch upon the application of the owner. While unrecorded they are incapable of transfer or encumbrance.39 It follows, therefore, that such interests do not override the Register in the sense in which the term is used generally; they just do not appear on the Register. If the proprietors of such property wish to deal with it they must have it registered and it may be dealt with subsequently as an ordinary parcel of land.

As regards the position of prescriptive interests the position is similar in both jurisdictions: prescription operates in relation to lands recorded in the Grundbuch. The Grundbuch will be altered where a claim to prescription is demonstrated by thirty years possession (natural persons) and forty years (corporations).40 Alterations are effected by suit in the Land Court.41 Where an entry on the Register has been shown to have been destroyed by the passage of the requisite time, the Court may delete the entry.42 The deletion must be based on public documents or by declaration of the parties entitled to the prescriptive interest.43 Proposed determination of the right may be recorded on the Register by a notification of suit44 but both the notification and the prescriptive interest is subject to any interest which has been acquired upon the

9

faith of the

rectifit-r1t]. {)fl

interests rntI8t

m conter~ts. all interests recorded the

dtlete,d

res'.rie1ed in both :i--_1.f those ir;.tere::~t8 \vh.ich :1ttestation n,··r,,,;o, .. ,1',·,·,c,

to the notification

The sa.~ne 1nethod cla.ssification of interests in rda-tion. tc, tht Torrens s:yrst1;:rn be :foHovvr.::C. htre,

1natt,ers 1nentic:.·n._~d :::n\;.:~ -::~xcept for

interests ir; '\~lhh

and in ,:,:on.sequ,;nce an~ not h1terests. 'The

easerne:n.ti:. or in i:J1c Cti.3'C':S of drainage and ·\1Vate:r 0tr:vi-cn1s.45

bccaust: of the express terrns of ·the ec1oemenl:s" are ab;:J The of "cus-

not c:ear and Ruoff rnaiu1taim that

!CJ

do not exist.48 "Public rights", on the other hand, have been taken to include such rights as the use of a highway, lateral support for land and may even include statutes relating to compulsory acquisition ofland. However, their full extent is not understood.49

"(b) Liability to repair highways by reason of tenure, quit-rents, crown rents, heriots, and other rents and charges ( until extinguished) having their origin in tenure;" Ruoff maintains that such interests no longer exist.so "(c) Liability to repair the chancel of any church;" This is a liability imposed upon successive owners and is extremely rare and

if it was disclosed by the deeds it would have been recorded on the Register and would not be overriding in consequence.s1

"(d) Liability in respect of embankments, and sea and river walls;" As to these Ruoff said:s2 "There is another overriding interest that is almost unknown in practice in inland areas today although at one time every set of printed requisitions upon title contained inquiries about it, which sometimes induced jocular replies". In other areas the duty will fall on the land and where work is done by any

Authority, a charge on the land may arise which will be registered (as to which see later).

"(e) Land tax [tithe rentoharge], payments in lieu of tithe, and charges or annuities payable for the redemption of tithe rent charges;" Land taxes of the kind referred to do not exist now;s3 except for this such a

charge will be overriding. If it is proved to the satisfaction of the Chief Land Registrar that no such charges exist, a recording will be made upon the Register reflecting this fact.s4

"(f) Subject to the provisions of this Act, rights acquired or in course of being acquired under the Limitation Act;" The Limitation Act applies to registered and unregistered land alike, except

that where the period has passed, in respect of registered land, the registered proprietor holds the land in trust for the person who has acquired the title to the estate under the Act.ss The result is that a squatter holds an equitable interest and interests derived through him are also equitable. This will induce him to seek rectification of the Register to obtain his own registration in the proprietorship register, as proprietor of the "legal" estate.s6 All titles estab­lished by limitation are effective as overriding interests until the Register is rectified and they are recorded, at which time they cease to be overriding.

"(g) The rights of every person in actual possession of the land or in receipt of the rents and profits thereof, save where enquiry is made of such person and the rights are not disclosed;" Although there is no clear definition of what is "actual possession",s7 the

circumstances of each case are always examined and even though a purchaser

l l

does not establish the existence of a person in "actual possession" he holds subject to the interest of such a person. What is more, "actual possession" does not require continued occupation and a purchaser will take subject to the interest of a person in actual possession even if not in fact in occupation.58 Such an interest would include the position of a purchaser who has gone into possession before registration of his transfer, a tenant at sufferance or a tenant at will and probably interests in a short term lease (where the tenant is in possession) which is not within the strict terms of section 70(l)(k) (as to which see presently).

"(h) In the case of a possessory, qualified, or good leasehold title, all estates, rights, interests, and powers excepted from the effect of registration:" Both "possessory" and "qualified"titles ( where an absolute title has not been

granted) are rare in the extreme, covering less than one per cent of registered titles. The existence of such interests will be apparent from the Register, which will show that the title is either "possessory", "qualified" or that it is subject to the interest of the lessor in the case of "good leasehold" title (where there is proof of the lessee's, as distinct from the lessor's, title to the satisfaction of the Registrar).

"(i) Rights under local land charges unless and until registered or protected on the register in the prescribed manner;" The subject of local land charges, and their registration, is dealt with under

the next major heading. All that is required to be said is that title is subject to interests registered in the Register of Local Land Charges. If such a charge is registered on the register of title under the Land Registration Act, then, by the terms of the paragraph, it will cease to be an overriding interest.59

"U) Rights of fishing and sporting, seignorial and manorial rights of all descriptions (until extinguished), and franchises; Such interests are not a major incursion into the security of the Register

because of their rarity. Where copyhold lands have been enfranchised, as a result of the decision to do a way with copyhold tenure, the deeds will reveal the rights of the lord. In this case, they will be recorded on the Register, thereby removing them from this category.60

"(k) Leases for any term or interest not exceeding twenty-one years, granted at a rent without taking a fine;" A lease cannot be overriding if there is an original grant for a term exceeding

twenty-one years, no rent is reserved or a premium is taken for the grant of the lease. The problem of what is "occupation" has been mentioned under para­graph (g). The large number of leases and sub-leases in England is the justification for the failure to record these interests on the Register; it repres­ents a variation in degree only from the observations made in respect of the Torrens system. Such an interest is treated as though it is a "registered disposition".61 The effect is that immediately upon its grant it will take priority over all other interests except those already protected by a recording on the

12

r,nd Dl:her In rf;sp:cct of land

to mines and registered before the comn1encement of this

aad. other

were created b,si:ore that and vvhere the title 'N33 first after the of December, hundred and were created before the date of firs, This those iirtereats and which have not b,.~en

reccrded on the Regis.tero One vwuld ' such c~mes to b,~ rare; if ther~ vrn.s reforenc:e to suc,1 a;1 interest or m2.de upon first

'"6 Provided io t!h.e satisfaction of the tha.t any

V/here at the tin1,e of first benefit cr,eated by ':In 11J2trutn(nt and the th,~ The

Rule 41, which enables the Chi,.cf Land

from land ita:c, or tithe or annuities

the

The prnvi8c i:, the

en.ter '"cfverridi:ng int,e:rest3, 9~ at th·e ·;Clrne of first

case h,:: will no, rec,ord matters v,hieh >Nouki be oc,vio1rn fr::im an the r.uch as ~hmt terrn of 'ivilY on building est;;,tt:

could "be n-:garded as of a ~'trivial or obvious character or e:'.11trJes to cau:;::; confus::ion (ff incon'vt:niencen,0:.

'Nhere the exi:;.tence overriding interest mention.od in this sectic,n to the satisfaction of the or he may to

any prescribed enter notice of the so:n1e or of E'. daim thereto on th•e but no clairn to an easement, or privilege n:::it created an instrument shall be noted title to the ser,;ient land if the

suffki.ent cause to the Such ,.entrie:s 1J1c~y be rnad.f

inhibiHon. on 1h,e not th::;

notic.,e is given

resiricti on or

for the 2,ub-fection ::ind the Chief Land

The Act !975

fevv Jn nurn~b,er~ H'".'. thle sn.nie -vvay fiS Hcviever, sorn,e of them might have Ix,en

reco:r~:1cd ir.k the P .. egisv.;r of :Loe.a.I I._,and \?hiieh .,vvas. a record fin,;nciaI of i:he type outHn,~d HoHand

r:.s foH rf-llfJJ·,:66

u·rr.1'.e ifuEdatn.ental bas.ls are to b,: ·;;oid against a

J1(11oney'Js vih/fJ·rth ltnless :cegistered are

The L::,:al Land

cer11trc.,l irtt•~rt'rns record.,;:.(] \V{>:f('.

en,2~ctl'.T:ent~. \Vh~_ch gB.vt 1or:a1 aTJ°J]-'J1t].ties ,a flnancia:rJ. Interest in vrork in the of their dnties, Because

v;,::,re recon:kd in

loc::iJ land

of

si111ilar

The re:suh of faillre to Rach a was 1cha1 it \Vonk!. not ::;, •6s ff a sali.::itor omitted to make a seard, l:he

com.>iczned ,smd a charge ·was found to Jia ble to his in an action for 1Ju,."''',r-.'~"'~"" The benefit to be derived from this

a 3olicitor in our type of practic::: would ,;~xpec:t, in the make t',VO se8rch;;;s

and in the register of Loci3\l La.ad curtailed a a:,sau1t on sy:3tems of

the Lr:md Act

.1::1-nc~. the rea:son.s fo~· the ena.ctrncnt have been exarnined at ilJl a recent

consideted h,:cre the effect the

the 11)r issues to be to

upon foe rather than its officers

was 10 c:ind 11: compensa­

u.,,,.,, .• H,,,, enforceable, This Vihich '·'c:::mld

be either

mortgai,?;.ce and shall be treated a:s ,;ases u,,,,,,suvu at 1:ds "CHre-ction to .another lltrson;

rn.ther than :u; is that the Act makes no forthe

reason r10n-dbclosur.e 11.s the case m,Iy be. Such a result may

1vhen the lDss is discovered at a dme far rtmoved (:f -eontrai,::t, if th.at \:VtiG, to the date ~elected as th,~ :e;n.e on 1Nhich

loss is assessed. The 2,pectre ,(if continutd inflation may •well exact:fbat•e this vvhich will solutic,n Ada.ms rnakes a nice ~t::mmary

routine Ll

and the 5:1:;ction 10 ~ tt•.e

'Whi.ch vv:crn available unde:r the old Act but in circumstancrn ·which existe,d! in fact a~, alrnost before .~ictual.

can be setn sti.11 to ln vvd] still. on the

15

m guarau.tees of such interests in New South Land

of intl°:rests referred to n.1gJce rnore inroad§ upon the

Uc">,.<vl"VHi> exan1inicd the case of

valuable p,-otection 'to the internsts of 'l pur-restrictions upon his of

,.;,,,u, . .u·u'"'~ rnendoned hav•c had to face the prnbkm of hm:v to derJ <l)Vith interests - whether shc:uld be recorded on the under the la7,s and hence avoid th,::: of 'their creation under son1e special ern:1ctment; or recorded in are not recorckd at. all.

·\·4:/hatevt~r thie rea.s.o:n for th1:: ,:':xis'..-,,er1c.e of of view

are i1ot in the nature of but are a fm1.dr,m-cntal distinction to be dra1Nn

fhezns:1:;1:lve:::. in reference to risk the ,;:-;on:sequ.e.n.ce· of th.c existence (f'f b1ue:d,~n.s of nature:·~.

Both those contained within the 1\c'ts themselves, and those olher s!.:ltu'.es, haw~ gro·;vn sine:;; the intrnduction of !itk by There are considerable iaco1nsr,2ten,cies '.vithL1 ea.c1:

!11 J'~l,')C,\Cll.,•o.;,

but legal interests should be either overriding of tional inconsistencies in the cr:rne of leases: in England leases for a not exceeding twenty-one yearn may not be while the period in New South '\iVaks ir, not three years and in South Australia one year. Kn

leases not is ten years. In son1e cases

not if the leafe falls whhim the

interests in all forms of title. Tl'1e ir whrether '.Shouldl bt. ri~duc.e,d or eJin.1.h.1at,e·6l in syste1ns -nftiOe by :,.egistratic1n ~30 as to enhance th,:;; of fai~h? Kn other words: Iha.t which appears

16

on the vali.d enL"'.)' and Hrnt ,;;,hich does no'l 9 doe~. 1,,.1t exi.st. In e5sencc, should be bound the contents of the RegiBter. Their existence in "oh:l"' sys.tern title is ncr( ,;:i for their centinued existence in title

H has been

the deeck lt nrnst

interests 'f~\'ouh:Jl ·oe fll)tund n1entioY1ed in "old" cl'Jcu1w,:ni:s are

Hov1-fron1 th·e

~ BW, in the c:t.:ii.s-e of an erroneons

intercsrn fails to take of t11e fnH The effect of a vendvr's failure lo disd ose th ~rn,

v,here he coi:weys a:s "b,em:ficial owner", ~s that the will tel:e to th:::111. That is t(, say, because ,h~ intere~ts ;Ee wiH remain df.ec1.ive whether the title is or is not tnrn,forred be,cause the ,'.itle is

to them until they terrninai.e. H L, that the may .sue rhc vendor f c,r if the inV;,rr~:st ammmts tc a ddect in title. V\!het.he:r thfa

on t.he ·defoc:I: "':serious". Hit is not the has iOS'l Etny

the Dther bave had after contract but before

he could call On the

purchase. This ·will deperd on th:: t~rnic 0f the coni:r«ct foT :mk: a def(;:'.ct in dtle for resci~si:0111 :1nd a court ?iiou1d. noit force 3 to t[1-l.r,.e

a ,jefr.ctrv·e title ,.mlesf he had ris,<; to a claiirr fcvr 1:::nd n.,'.)t res,ci~.;sir;rL n1ust l,~.2r ariy loss. e7 ./\.n. rr1a} be taken fr()111 the ]2,n3lish situatior1 •,vhere a 1.m6-,,r n trust is in int.encf,t m1r.kr

s,ection A smomary inten::na has. been

n1ade in Engl:il.rnl H concludes as follcnr;s: 8Q

''Tedrn.ic:11 difficulties rshouid occur ·with certain 0verridi:og iriterest:s existinga1:fint or[with

implication, limitation or , .. Vvith a.11 be des.lt with bi.a - perhaps by a wen advertised time~limit for entering claims followed by avoidance - but no do1,1bt the status quo win be fought a being found for e11ery soluiion". This quotation reveals the difficulty ,::oncerned in the redi2,c:tion of

interesrn. The aim hr,.s 1.he support oZ the Law Ccnnnis-r;bn90 arn~ Dr Potter the :for the status quo as as 1935 ln tbe

only by ,:m entry on th,e

1 '"T I

Even thrn co:nmex1t is restricted to to all or,hers. tc the in the other jurisdictions, the following comrne;:rt:, m2.31

he 1nade. I) Frnud-ii:is not thatfrnud should not continue to titl<e

but upon th,,~ basfo that it relates only ro, a interesL Estaies or Interests - th,;: ,.hese might be de.alt with

reference a~ has been fouud to

should t',vo issued tG the sancie claimants should b~ heft to a Land Colrrt with

title

a.ru:l 11tay be shou'.ld. bez:r the cost o:' its ov;n rnlstakcs.

L.';a.sernern:s ~- Lhe3·r should no'i: be fi.ijth: upor~ firnt it 2hould be

i:,J seek out the benefits and burcL~m through

cf any interests in t11e lands 111:tere:;t3, .A. snJ_a.H anrnourit of of to thi~s added! desre·>3" '\~/h11~ri:~ .sn1 easernent is) 1:)n1itted

as in James v. this should not provide a ground fm denying the benefr".s of public faii:h to a ;\gain, the burden should fre upon i:he assurance fund to make the loss of an adj owner and this will be able to be determi,ned on a suit for rectification may or may not be granted) and the amount might be the cost of re-

the ea:senient losL The loss been caused by defauh in the should not be forced to carry ash iB ~- loss 0 1-.1er

ease1ments estoppel, they come for determination under the lav.1 and such ea,sen1c:nts •.vou!d be recorded upon of the existence therc:of might s, court

In the case of e,,.seroent3 by implication from the: contem:.s of the

Register this would be covered by the remarks made previously under the heading "Estates or Interests". That is to say, because they form part of the Register, they come within the doctrine of public faith and take effect under it. As regards easements or other rights which may be established through long user after first registration it is submitted that they should be able to be created upon ordinary prescriptive grounds while noticing that such acquisition for easements is positive and not negative (as in adverse possession). Because an interest so established would run the risk of being defeated by a purchaser relying upon the public faith of the Register, this would induce an interest holder to seek registration of his prescriptive easement.

(5) Wrong Description of Parcels - again, unless the person seeking a remedy is the original applicant, the loss should be borne by the assurance fund for the same reasons as those advanced in (3) above. It might be that rectification could be sought against the registered proprietor of the parcel whose property was included, but this would depend on the establishment of a ground for such rectification under the general law; for example, estoppel. These arguments, are supported by the likely rarity of such a claim occurring.

(6) Leases Not Exceeding Three ¥ears - this is the one major area which causes concern. The compatibility of short term "tenancies" with the princi­ples, aims and hopes of title by registration, is impossible to achieve. All the jurisdictions have excluded some form ofshort tenancy, so as to prevent the supposed "clogging" of the system. This result may work hardship on a purchaser. Even though there are the twin rules that:

(a) possession is notice to any one dealing with the property of the interest, title and rights under which the possession is retained,93 and

(b) a purchaser in possession is to be regarded, for the purposes of the enactment (at least in England) as a tenant;94 the occupancy may be disguised. For example, the vendor, particularly in rural sales, may assert that stock on the land is his, or that the people apparently working the property are his employees. There is the added problem in New South Wales of section43A(l) having to be read with section 42( d) of the Real Property Act, which ensures that where a purchaser has notice of a tenant's rights, where the tenant is in possession at the time of completion of the contract for sale, he takes subject to the tenancy where, according to the terms of section 42(d), the lease or lease together with an option to renew, does not exceed three years.95 In justification of this overriding interest, it may be argued that a purchaser will not have very long to wait if the contract has been completed with notice and, in any event, the purchaser has a remedy against the vendor ifhe has conveyed as "beneficial owner''.96 This view is inequitable where the period is as great as in England or even that in New South Wales, because leases for a period not exceeding three years may be registered.97

The argument against such registration (which would not seem to apply to New South Wales, siiice such leases may be registered) is advanced by Ruoff:98

19

"in a country like England, where letting, sub-letting and sub-underletting is carried on to a degree unknown in any other part of the world, to note every lease or tenancy would mean that the register of title could become cluttered with a great deal of temporary information that is not usually disclosed in the title deeds or abstracts of unregistered conveyancing". This may justify the extensive period in England. It is supported by the

remarks of the English Law Commission, when it observed, in 1970, that it would be ideal to record all leasehold interests on the Register but because of the varied incidents of lease, termination by notice, forfeiture, formal or informal surrenders, together with the short periods involved, this could mean that the Register would not be reliable because it might not be up-to-date resulting from an inability to record the incidental documentation and that to put it into such a state would involve unnecessary expenditure.99 The Com­mission also observed that most leases are for residential purposes and most tenants would not be prepared to deal with any formality "however simple"100

and that, therefore, they should not be recorded. If it is assumed that some form of overriding interest is necessary in relation

to leaseholds, then the duration of the exception should be for the smallest period possible: for example, the period in South Australia is not exceeding one year.'°' The argument that a period of three years is necessary to prevent an agglomeration of material upon the New South Wales Register is unaccep­table. The only argument which has been advanced against a reduction from three to one year has been that no demand has been made'°2 but this may be explained partly by the fact that such interests may be recorded in New South Wales, if a tenant wishes. It is still true that compulsory recording of leases would enhance the value of the Register. If all leases are not to be recorded, then the shorter period of one year (which has worked in South Australia) should be adopted.

(7) Rights in personam - such matters as these might be left to be dealt with upon the basis that unless the Land Court is prepared to rectify the Register, a purchaser should be entitled to rely upon the principle of public faith; the person deprived of title would be entitled to make a claim against the assurance fund, if he suffered loss through the operation of the system of title by registration, provided, of course, he did not bring that loss about.

In conformity with all the above observations there is no reason to suggest that there might not be a substantial reduction in the number of overriding interests contained in the present Torrens Acts together with a reduction in the extent of operation of any which need to be retained.

As regards overriding interests, not mentioned in the registration Acts, which ride over the Register as a result of the rules of statutory interpretation, it may be said that, like the interests contained in the Act, they are the insidious "legal" enemies of the system of registration.103 Many, if not all, of them might be recorded either on the Register or in a separate register of land cjiarges, so

20

that failure to record would ha.,1e the ef:fo:ct that would be 1.menfornc:able llovvever, it xnt(st be

would be C£E1tCdled

the ne1.1v Lu1Jess this To do so would make rele1ant bodies

and is desi.rz,.ble. Th~ alternatives are:

The initial purpos1;; of the of haE ,1ot been achi,~ved. How does it basfa is :in index

of names or filing of int,ere:sts under the short title of tl11~ en.?,ctrnent to \Nh~.c]b thr.; be add 1t!do l06 'This contained. ihe s:e,eds of

s,cu:ne nEn1e to enabL~ th(e

Tfw sr::id :o may bind atiHe in a r:arne other than the recording :,:ystc:m in conflict with the n1ay have to be an historic ~ear.eh .e,f title to a.scertmL_1 wh,1,;r.her t.!1,c . .-, ...... ,,~.~···:·" ever eacumbered a in Hw of Causes, V/rits and

In

a le sean::l1 the VVrits and Orders still exists in the case of Torrens title land, 111 and the fact that this is sometimes done mentioned in the

15 better one on ,;vhich to rejection of the recording pro.r:edure,

It is claimed that soHeitors "never find land thie. ash is the usuaJ is 1:nade the name of the current inconsistent with Hic the Ok',>e:Sh,,,,, .. ,

the

Writs and

21

could 1eai;t

could be rm:de

,.;oJd_n title only. 115 T'hi:s ia~·,t ke, but it sc:.id that the benefit:, tD bt: d,c:rived from the

sbcJuh1 t,e d.t;n]_cd to esers of the 1~cnTe:r12:, [;ysten1 ancl tlurt dJe

of Title -? r·,~o··d with the

inforn111tion title shouid be found upon the dtle but its atlon ,vouM be diJficult a~ thor,e rn,:ctt,,~rs ·which are cc,rnmon tc,

~:ud1 as rate:,, The basis for the

be recorded on the ;2_1,t prtr,ent, as

·v/lth .r:cd,;,:;s and t~::JXC] rind any ·Othc·:~~ rec-u.rreD.t Hr:rcbility. Such;:: solutit:,.n VV{)1d.d result i.n e, ,'gre£rt rt;(l nc1,lon. I.n tht t::1p 1es of interest~·, arising

this soluticjn iG at.trai::tiv·e :~-~r1d ht~ and

solu.don. If sucli a! sul·.utioin 1s and the wriLer believes that it i~. the rnse.

Tlw: Englfoh Local Land

and

Ac1: 11975 - this smoth1~r aHenmtive to irvoid th~ problem but lei!lves the the property. To adept d1e solution of a fin,Incial

are to be m.2.de ,Jnd

existence of the

issues 'iVh i1::-;h znay give rise to of tbt 1dtt.d nm. Then thf:re is the of how i:he assessments

curtailment of the Las,. of

22

assess:rn:::n.l of loss is i2 to he had to in:i:1ation or deflation His submitted

t1:ie alternative is altermltiYe thail this which will real

c::on1n1issl.oners of 1 "old" system and present an,d in Vif ales,

'''On

-;11,;1hen subniitted that

of the Torrens

a

age as the with Hw difficuli:i.es of the

still relevam to the systern EtS it operate:1 in I<iJe,v Srrtri::h

·plac-e, for fin.,~s and rec10-veries in and r .. 1les art:: enrcdJer1 in a arunJitl'.e~; arc rn~n1.oria1iset1 in a and v,1.iHs es.3ential to the title may be scattered half eccl.e;;iastical courts of {he '<,N)Hm aH the and expense~ ,i1vhich ther,;e searches h:Et1.1e been vvhc.,le estate n1ay be an 1exitent fro1r1

·vV:hich is no\vhere~-;" The ofa shodd be: obvious. from 1.he

considerations a2 it "i.vould enrcble tl1,;: r1sc:erta~ln tho~,;,:;; necessary that the interest~ i,ni:e:re:,t3 which may

rC;;cordect on t.he 1s not

a:; the of of these would difficult: the i:rnue if whether or not any i'devant intere.st

be

title can. be ascertained \V:h:h and. •,:vith the (;onse= obtain a clear ~Jne e:ncurn-

lt is su.b1r1itted that. the:re sJnould bi:: fl and th,:rt shoul.d be to cover all i;hose interests

after its (:.recrtion as rnay affect the title of BL ) 19 Th.is '~Nculd ensure that the v:hi.-:h has grovvn up 1xil:l not c,cmtinui::. The purp,ose such vmuld be to enhance the of title

may be den10:J.strated the :3ituated

aC:fect that la.nd than to rnake a 2,eries of s.earcb1es for Hie: n1atters 1:;vh.ic_bt do so. In the snHc:it~Jr even be un.a1Nare r~f one or rn.or,e of the Inter'=·:sts ·r1,-vhich rnay be reL~,vant to a

23

purchaser of land at Albury. An additional advantage of such a register would be to avoid some of the costs involved in this present complicated procedure; It is true that the expense of searching one register of charges would have.to be met by the purchaser but there would be overall savings in time and money. Were these interests to be recorded in the council offices, then even rating questions (see below) could be examined in one search outside the search of the principal Register. 123 Such a proposal also necessitates a regional system of register, for the same reason that rates could not be dealt with centrally on the Register of title.

The proposed Register of Land Charges should be established on the English model, with charges recorded against the property (by reference to a volume and folium number equivalent to the principal Register) or by block number (which has the advantage that it might be applied to all lands, both "old" system and Torrens title). The Register might be based on a loose-leaf and/ or bound volume system. The advantage of a loose-leaf procedure would be the ability to withdraw and insert charges on creation and expiration and this would result in an up-to-date system without the need to record cancella­tion. A bound ¥olume system would permit the destruction of volumes outside the period set over which searches were required; this would be built in automatically in the loose-leaf system; therefore, the cumulative benefits of the loose-leaf system show it to be better than one based upon bound volumes.

To base the separate Register of Charges on names (a less satisfactory alternative to the first suggestion) raises relatively obvious objections. They flow from the remarks made in respect of the New South Wales Register of Causes, Writs and Orders. In England, the general register of charges (which applied to "old" system title) was subject to those and other defects ( especially since there was no requirement for the re-registration of interests). Thus, where the registered interest is more than thirty years old it may be impossible to find out about it because, on a sale, the title need be shown only for thirty years to a "good root of title"; nevertheless, such charges created beyond that time and still operative, bound the land. The reason for the adoption of the name register in England was that the Ordnance maps were out-of-date and could have been updated only with unacceptable cost.

In relation to title by registration the problem is that, if an alphabetical Register of Charges is adopted, then there might have to be an historic search of the Register of title to find prior proprietors against whom currently valid land charges were created. To curtail this problem it might be provided that such interests should be valid say, for five years unless re-registered against the currently named registered proprietor; otherwise a purchaser would take free of the interest.124 A variation on this is found in New South Wales in the Register of Causes, Writs and Orders, where registrations are effective for a period of five years in the case of a writ or order affecting land or lis pendens and to be effective beyond this time they must be re-registered.125

24

The SUCCCG& ofthe IlB1.mc

of Lc,cal Land in England, th,c: with the defects

and not th;; of

on,:;: hand it was said thRt the r:;gist,r:r V>'HS a success and year cau3ed little difficuhy im the 1Norking

on the ,'.J1!;her9 t.h.e 1t111as d,,~sc.ribed as nnsilccessfuL127 It v,as of Yalue in the case of in,eres'!s of fonited life becaust:

smaH amount of historic searching 'was requL,ed.128 However, the ")f th,:: English as trar,sitional1 21

because it 'Was the universal hope that vvould salve: them,Dv The of Loc:c1 Land by the adoption of tlu;

on property as:d might be dceme«i to be of tide registr,s,tion, 1th us ;rnaking searches of the

come w;thin the doc:tdne of public faith, or deemed Th,~ system of regional

the district of ,;;,ach local and there rshouki b,~ no His d1e Registers

should be tied with the cornmon Lav; rule that c1n1s:t be free foCJm enci1,mbranct:s at f:ontrar.t unless the purchas,c:r has actual :;:otke thc:reof, 'This is so b,~cBmse the aim is that a must hold subject to .),H registered internc,t; on the ~Jf title the of Loea1 Land Charg,es) and that frUe by should be as co:mpatible with the law as is A ~hould be fixed ,,;vith notice of an encumbrances

1lo sell free therefrom; a purchaser must be obliged to take the p.wope::rty ]iDca]. Lar1d -ev1~n

he d.oes rtut asceriain :tts rexistence,. 134 l~he

able to know that hL, r;ompktion would intere~sts. 135

The ',vith a register of the kind it off the ground". Should it operate prospectively t,o interest§ created before it commenc,es? from the of viev; of co:3t, it would difficult to n10unt program aimed at previous charges. This problem arose in

on a suggested Iransfor ,::if i:he General of t.o the "old"

to he the snag Qf1 Vfhich th,~ 100'',mOn,Ce>

The ,effect offadure ,:,o Land

ilie w .~, ''''" ,,~,,_",'' the pmchaser Ila kes fre,e of ic. A supplementary

25

ii1terer.t is not would h,::

clias·er becornes

the interi:sts the present

for the (:::ro,,vn or oiher statutory bodies as the interesc rnay be enforced ta nee in the case of financhd dH..ims, A,

hir,L This is of

the Scher1ne V/ould. o~Jerate, in the case of of the est.·:ite vvas r·.~C(1rded on the of J_,ocal Land

,r~f tltle. It sb.01dd. be

Esed h v,ould be it8, of work and recordings, already con,ducted would

''ditch" the idea before it could off the , Cost ,uould be too great. Rates are not in the Torrens Register in New South "\,Vaks and

dern~.nds the vm.y of an icntereGL 132 A in ~'"l",'~"'·'u

of Hh:: vendor's last re,te receipt, which will re'1eal any South Wales the rate liability is as;certai!ied a

. ·where rates are for the council and h,r;: must also cf exoneratioR Tlvcr,e is no real

,,.,,,-,-;c.,·e,,1 bui th1~ a s.ystein1 'Pvhich ca11 handh:: an the entries. ·Tte truc:r: re2.son

h:1s been this very point: this vms the basi;, for the refusal of Law R,evision Committee of I 955 to indude rateE in its

Thefe is the that certain rates could be 1;,,,,.,,..,..,,,,..,:-" Law Revision Commiuee:i42

"If thrc: existern~e rate2 were made to on registr.ation of sorne instr1u111~nt ·cou1~:iC:ili after the: indebtedness had reached 13.nd 2,n ovrner who sold kmd without forthwith dischHrging his indebtedne5.s to the council ,,vere placed 1J.nd-er

for so doing not vvould "ihe council h-::: but the cost of

necessary, as his innocent

purchaser would b,-e avvare that the rateE up to a certain figure and no more, cm thif, ire the cf the rate upon the involved, Thu:s a purchz,ser wou"Jd h;;,ve to be prepared to meet a set and no rn.ore, 2rnd ov,ernll 1-0ss 'f,.1vou.ld f2H on the ir.:=01Jn·~il ,a.nd is dictali:ed expediency and. .Register of Lo,::al Land

the

·vvDuli-:;j ·D"v\::~·er}n1e the

such a solution solution ito the pro;,lem, Jf 2,

and the rate waf was kepi at each comidl

whe!cher the rate had been

n1attern would be deaH wiH1 in th: office where the greatest amoun,. of work was The cost increase would be ihe staff necessa,,y to handle such other inl:,en~r,ts a/3 might be record,.~d under other ;3ta.tut,es. The ,cos'i: of office furniture, lighting etc. might he off~set registration foes and ~earch fe·efl. Additional costs, if any, might be met from the Consohdate,d Fund, for th,; as a would derive benefit from the of the n,·rn,·,,n,e,

The was to be one means by which t.he 1;11ould operate more

The idea was Iaken up, in New Souih 'Nith to the titles to Strata Tit.le Act the that the benefits of rapid

and fast retrieval of information be obtainc:d that the pilot program be

27

whol,~ Torrens sy3tem. 'fhe alllhough faihire and it ·was a':l:iandoned even before the date aet for its

H seerns that the snag upon which the foundered was the multiplicity and of of re,c:oc·d,ed. I-fad the property law been altec,red i:o rmd reduce the number ofintererts in land ther. the idea might have succeed,ecL However, it \Vas that the lLand Thl,es ()ffice held no brief for Guch a funda~ rn1~ntr~J system. bad to ,m.rne probl.::m has

Thi~

,., .. ,,,,,.,a,,,w examined. It m1iy be and retrieval techniques develop to snch an extent tha.t they can ar:,::omnwda~e the comple"-· itles ol' the law.

'Nhile the any answer with

aE,

between this and Ls .appHcll.',.ion to !h1;; i:h,c: fimmcia1 Having 5aid foe,re rerm:fr,2, the

of non-financirJ xnaUcrn 'iHhich c.:m ovenid·e the ti::le. The:,e int,r::r­

fi,y3ttrrL T'l"ierefo~.\~, which ·;:vould L1save

in iaml and

re(iuctcd .r11nd ;not snlv.,~d. 1?1/l1e~J ·thi0, li!cely refr1:J11t. }s cn1,~.rdc'!ri,eid \virtJ::t the as to many other difficuldes arise: such

online

Com.:hmnmt

outlined above i.t would be to as many interests title to land as are specified within foe concept of the Register of Local Land Charges. The result would be to offer as complete and 2,t a reasonable cost boi:h to the State and

The security would he tbe the added b~ndit vvouJd be m would need to be 1mdertaken: (1) a s,,:arch

under the Torren~ sy,,ic:m, and a seard1 of th,~ Charges.

2il

FOOTNOTES

I. "Report of the Property Law Revision Committee on Statutory Obligations Affecting Land", Government Printer, Sydney, 1955, 33; Opie, E.A.D., Correspondence on the Real Property Act, Carey and Page, Adelaide, 1882, 5; C.T. W., "The Torrens Land Registration System (as seen by an English Solicitor)", (1957) 107 L.J. 567,568; Jessup, G.A., "The House that Torrens Built", (1945) 18 A.L.J. 302,305; Adams, E.C., "Statutory Land Charges", (1940) 16 N.Z.L.J. 295,295; J.M.L., "Registration of Title", (1942) 92 L.J. 235,235; "South Australia - Registrar-General's Report, 1860", 8; Jackson, D., "Registration of Land Interests - The English Version", (1972) 88 L.Q.R. 93, 119; "The Report of the Land Transfer Committee", (1943) 8 Con. (N.S.) 62, 66; P.P., "Registered Titles", (1964) 108 S.J. 650,667: 652; Green, W.A., "The Perils of Non-Registration", (1965) 115 L.J. 382,382; Cretney, S., & Dworkin, G., "Rectification and Indemnity: Illusion and Reality", (1968) 84 L.Q.R. 528,530; Potter, H., "The Registration of Overriding Interests", (1935) 21 Con. 62, 62, 63; The Law Commission, "Land Registration (Second Paper)" Published Working Paper No. 37, 26th July, 1971, 19.

2. Ruoff, T.B.F., Ruoff and Roper on the Law and Practice of Registered Conveyancing, (3rd ed.), Stevens and Sons, London, 1972, 403, Key, T., "Registration of Title to Land", (1886) 2 L.Q.R. 324, 330; Ruoff, T.B.F., "An Englishman looks at the Torrens System", (1952) 26 A.L.J. 118, 162, 194,228: 118, 163; Head, I.L., "The Torrens System in Alberta: A Dream in Operation", (1957) 35 Can. Bar Rev. I, 9; Kerr, D., The Principle of the Australian Land Titles (Torrens) System, The Law Book Company, Sydney, 1929, 11.

3. Stewart-Wallace, J.S., "Land Registration Under the Law of Property Act, 1922", (1924) 9 Con. 92, 92.

4. Stewart-Wallace, Sir John, "Overriding Interests Under Section 70 of the Land Registration Act, 1925", (1935) 21 Con. 53, 53.

5. Vide, for example, Kerr, D., Supra, fn. 2; Woodman, R.A., and Grimes, P.J., (eds), Baalmans The Torrens System in New South Wales (2d), Law Book Company, Sydney, 1974; Hogg, J.E., Registration of Title To Land Throughout the Empire, The Law Book Company, Sydney, 1920; Hogg, J.E., The Australian Torrens System, William Clowes and Sons, Limited, London, 1905; Francis, E.A., The Law and Practice Relating to Torrens Title in Australia, Vol. I, Butterworths, Sydney, 1972; Helmore, B.A., The Law of Real Property in New South Wales, (2d), The Law Book Company Ltd·, Sydney, 1966. In addition reference may be had to Adams, E.C., The Land Transfer Act 1952, Butterworth & Co (Australia) Ltd, Wellington, 1958; Niblack, W.C., The Torrens System its Cost and Complexity, Callaghan and Co, Chicago, 1903; Simpson, S. R., Land Law and Registration, Cambridge University Press, Cambridge, 1976.

6. Barryv. Heider(l914) 19 C.L.R. 197

7. Frazerv. Walker[1967] I A.C. 569

8. Ibid., 91-92 Cf. Woodman, R.A., and Grimes, P.J., (eds), Supra, fn. 5, 194

9. "Report of the Property Law Revision Committee on Statutory Obligations Affecting Land", Supra, fn. I, 5

10. Ibid., I 0

11. Opie, E.A.D., Supra, fn. I, 5

29

12. (29.:lO) 62 C.L.R. 602,

J,,. [i9,5:l] N.Z.L R. S1il

15. cf the of resumptio:as. to be foufi6 in 'V/oodrnan, R.iLo I3.:L 136

of fbe l? rc:;Jertv L,1. V/ Revisict1 Co:;nr:n.htee on ""'·''"'""r" v.,.,,,,,c;'"'·'"''''" .frt f, Jf Thie nurnt,,'.;f ,c;,f 1;;nactme:i1t:; is ,,,,,,,,,,,,,,u

i. ::Rep~rt,0of the,

Land ; 01..,_iprfi~ :. n.

21, /bid., section

n.

23.

\'N eisrn.an., La::-2d La,v,

l3.:;_1(1 La 1..v 1

Lnw

24. feet.ions ! Of: and UJ \.

Ibid., 20

a:nd covr::rinf( b,'.)th Stat,; and

19flJ: ii.. C:+:ic.al /\nc.lysis'\ (1970), 5 is.L.R. 2-Si, 4~~9~ 159,'."b) and 162(2)

31. Cohn, E.J .. l'l[anual c:f Gennwn L.1 1,N; Oceana Publications 1 London, 1963, ~39

32. lr.tervi~~N be·~v,1ee!1 Dt Berndt von Hoff1nan~ ~v'Iax-JPlancb-1:nstitut fnr ,·u,,1c,ucm,""" und lnt.en1ationalies Privc.trecht, I-Ian1burg and 1\Jfr R, Stein, (Tuesday 7 February, l 975). 10. Cf. Tenancies for a lesser period: as explained, a purchaser takes subject to these.

J.(. Jn~;erv.ie•N D,:t~vt,~1.1 L1i:):zent Di- H:.:uu and fdr Stein (Friday 1 J h:'i January:.

35. f.biri., 1 "l

J~H"idisch1;; Facuhact, University o~~ inernr~a 15

36. · Ibid., 11

37. BGO, para. 3(3)

38. Ibid., para. 3(2)

39. Id

40. Interview between Dozent Dr Hans Hoyer and Mr R. Stein, Supra, fn. 34, 12

41. For example, vide, GBG, paragraph 69

42. GBG, paragraph 131(2) (b)

43. Fie!, E., Monographien zum osterreichen Recht (Grundbuchsgesetz}, Prugg Verlag Eisenstadt, (trans.), 319

44. GBG, paragraph 69

45. GBG, paragraphs 65 and 71(1) and (2)

46. Ruoff, T.B.F., Ruoff and Roper on the Law and Practice of Registered Conveyancing, (3rd ed.), Stevens and Sons, London, 1972, IOI

47. Vide, Wheeldon v. Burrows (1879) 12 Ch. D. 31

48. Ruoff, T.B.F., Supra, fn. 46, 105

49. Ibid., 106

50. Ibid., 106-7

51. Ibid., 107

52. Id

53. Finance Act 1963, section 68

54. Ruoff, T.B.F., Supra, fn. 46, 108

55. Ibid., 687-688; vide, Bridges v. Mees [1957] Ch. 475

56. Ruoff, T.B.F., Supra, fn. 46,688; Smith, T.B., "Registration of Title to Land" [1948] Scots. L.T. 67, 69. Consider Greene, W.A., "Objections to Land Registration", (1962) 112 L.J. 364,415,431,450,518: 415; vide, City Permanent Building Society v. Miller [1952] 2 All E.R. 621 and Woolwich Equitable Building Society v. Marshall [1952] 2 All E.R. 679

57. Ruoff, T.B.F., Supra, fn. 46, 109; cf. Hodgson v. Marks [1971] 2 W.L.R. 1263, 1268, per Russell L.J.

58. Ruoff, T.B.F., Supra, fn. 46, 110

59. Ibid., 115

60. Id

61. Land Registration Act 1925, sections 19(2) and 22(2)

31

R.N.D.ff, "Locc:l

66.

70. lnn Fields anrt

J.E.,

72.

75.

on th~

i,vith the Vict-:nian th·e conn.eclicn of sewe:i:·s :::i1d sewer ::.ad electrici:.y

ir1 Pa.rt of the Gn,,;ruibuch vide, lm:ervi~".'/

i~.B. Ivicfa:·fane Lincoln's R. Steir:1 Lond.orr (Febn.1aryj

Ccn. IG6

Tl. Ibid., sections l 1DO )(a) a:n.d I 8{3)

72. Adanrn, J.E., Sl;pr.a, fn. 7L 12I

79.

30. SuprD., f~. 55

3 I. Itttoff, T.B.F., /J;Jpra, fn.

82. 3 ! l

83. "Absninte

32

l

l )

84. Cf. other interests; vide, J.M.L., "Registration of Title", (1935) 79 L.J. 283,324,341, 357,375,393,410: 357

85. Interview between Dr Berndt von Hoffman, Max-Planck-lnstitut fur Auslandisches und Internationales Privatrecht, Hamburg, and Mr R. Stein, Supra, fn. 32, 3_2

86. Sackville, R., "Security Interests ·on Land - the Torrens System - Some Thoughts On Indefeasibility and Priorities", (1973) 47 A.L.J. 121, 133-134; Jackson, D., Supra, fn. l, 104-108

87. Law Commission, Supra, fn. I, 14-16; Ruoff, T.B.F., Supra, fn. 46, 336, 337

88. Farrand, J.T., "Riding Over the Register", (1963) 107 S.J. 939, 944-945

89. Ibid., 139

90. Law Commission, Supra, fn. I, 19

91. Potter, H., Supra, fn. I, 63

92. (1967) 69 S.R. (N.S.W.) 535

93. Hunt v. Luck [1902] I Ch. 428

94. Videpp. 14-15

95. Piesse, E.L., "Reform of the Torrens System",(1939) II A.L.J. 465,468

96. Law Commission, Supra, fn. I, 48-49

97. Parkinson v. Braham, Supra, (1962) 62 S. R. (N.S. W.) 663

98. Ruoff, T.B.F., Supra, fn. 46, 116

99. The Law Commission, "Land Registration (First Paper)", Published Working Paper No. 32, 3rd September, 1979, 21

100. Id.

IOI. Francis, E.A., The Law and Practice Relating to Torrens Title in Australia, Vol. I, Butterworths, Sydney, 1972, 266; Hogg, J.E., Registration of Title to Land Through­out the Empire, The Law Book Company, Sydney, 1920, 93

102. Interview between the Registrar-General of New South Wales, Mr J. Watson, and the Senior Deputy Registrar-General of New South Wales, Mr J.A. Griffith, Associate Professor R.A. Woodman and Robert Stein, Tuesday, !st June, 1976, 25

103. Jessup, G.A., Supra, fn. I, 305; C.T. W., Supra, fn. I, 568

104. "Report of the Property Law Revision Committee on Statutory Obligations Affecting Land", Supra, fn. I, 26

105. Baalman, J., "Experiment in Registration", (1944) 17 A.L.J. 350, 250-352, evidences the types of registrations permitted

106. "Report of the Property Law Revision Committee on Statutory Obligations Affecting Land", Supra,.fn. I, 18; Francis, E.A., Supra, fn. IOI, 37

33

11}7. Lav; lltvislon Cornrni.ttrc Din Statutory 0~:»ligatkms /.\ffe,r~tili,ig 13

108. Ibid.) 1::-

!0'1.

1 lO.

Ji 1.

Vh--le, sec"tiou 19 l( l) and cf. v,.1hic:n was not stu~ wlK~ther -~o the rteal Property i\.ct, lbiJ., 14

T.B.F. 1 ~· i~n EugHshn1au 228: 12i

::b.e f'fODCrty L2v1 Pcev!.tiDn Coirnniaee, ]~HO) r:1a1[;e it~cReir H:at the Register shoald apply

K-Id.1T.Of'S 1 B.A., The Law (~or.np,any Ltd 1 Syd.ney,

Rea/ PtDperty ln I\le1-P ,S'outh F}·~~1'e1, (26t The Lav; Bonk .5· ~3

13. Ibid .. l4

114. Baalin2c1

117. A.rtJ.c1,r: \iH \.:::-,llur,',1~:c1.,!t:fr0ns 111.ade ,:ya i\3-ugg{~stio'.:1::; S>~nt to 't.he CorD1n1Lii.tsionfrs i\..,.ppoirted tG into the :t.:.rws ,;Jf Real Propert)\ ~ivith 1v1inu~es. •::·f th·,:: Evidenct: b::;fore tru~1n"\

85 Qo rt, ~ 70. r?~1

118.

le Stein~ s·u.ura~ fJL 32, 1, 33

;.20. l-;1·.o)rai C~0nuni~sio!1 on the Land Transte:: }1-.cts; Se,s~md arF1 F,']na:. Repo:"t ief ·1:he Com.n1i~slGrn~r::: to B(nh Euu::;es of P2,rlifuntnt (~o:nmand of 1dis I·./iajesty)'\ Efa Stationery ,rjfficc, Lond·DE, ]911,

]11. \Milli~\ E. P.,. '(Just Ho\V Ynd1~:feasibk is -.:l ottr LBLii.d Tn1n;:;fer Title''\ ·:t. 963] N.Z. L.J. 269, 273

]24. Cf. Bills of Sale Act 1898 {Ne,v :SG 7~lth \~/ak:~)~ Eecrdons 5 and 6

125. Section 1815(2); G':f.nner1 JJ?., i"Lr~nd Charge~.; ~rn L.oc .. ~d Land Chr:xges' 1. 0957) 10] S.J. 97, 97-93

34

~ 28. ibid'., 222

129. ..!bit:f.9 221

13:D. lbic!., 2 l 8-2 i 9

131. Ru.off, TjlF., "·Right:; of Third Parties i!:: Registere·d Propertf\ (1953) ]65, 16'6-7

D2. "'·The Rdorm of Land

133. The Land Tl·an~fcr

!34. CL Forsey and .l-!ol!eboneS Contract 2 Ch. 3S3; vide, a]so i\JlC., ""Lani:'i C]~arges F'.eport of Roxburgh 100 S.J. 6] 745: 627--623

}3S. Garn.er~ JJ.F., '"?lanr,i:1g Pern1i5sions ar:,d L,:,cal Land Ch2.::-g,~s'\ [1949] J.P.L. :83~ I84-:e5

JJ6. of the Cornmfosioners '11vith Reference the

Lav; R,~vision Con1n1tiEee on Statuto]:y Ob:tigalions Affecting E.,,\, 9 Supra 1 fn. Hil 1 31

in Austr~a - L1te~vlew ~Jetvve,~n Dcnent of ·vienna ar.d Iv1.r: R StelE, fri,.

of the rv1inistry or Justice, Steir., (\Ved1(I1e~:day, .?.·~1r.h Jam.13xy, lS05), 1:'i--7

JJ9. Interview between ;~;!rs .A.R Y',kFe.rlane of ikr Majes':/s Land R,tgis'.:ry, Lincoln's Inn Fltekts, and r\.-1::· R. Stein, Supra, Iu. ~10,. 6

La vi I{e,.,ision Con111niu,.:;e on Statuto:ry OMigatJocs Affecting

J ,1.1.

142. Ibid., 29; ln'i:ervie~;v between ivfr V/.R. and Robert S-tein1 Registrar-General\ Office,

of rates, m,,v,,,.t101c to achieve but a n1ajor problem to ;;oP-sidei:ation is the new

h i·1s submitted that this problem is not insoluble if a of Charges is adopted for the relevant information would

i1., the council office

!:4J. D.J. 1 ""Auto--t!9 ,,\.L.J.

359

35

F,:tll!P*UTEHjSf lJ'~Nl~) 1Tfl~ ,i/A,J1[il:) lffit 111~~ 11 ffi1~ !F ,() ~~ ~1 Jt~ TI rD N

i\ndrew G, Lang lL.B .• Ll..M . .,,,,, J\~.·:1/JCiate

It IS that 1 should commence with a reference a seminar paper delivered at ,the AULSA Conference in 1969 Profossor \Vhahm r;c:1titled "P2.ritial Restoration of the of the Tor£ens

in v,hich he ''Since the nir,eteenth re:fonners devised the Torrens devel-

of the syst.ern which have to render it much ies~ effective than it ,vm,. his rny contention that

can, and

the system of u,,,.,,,.n,1,15

system, .. The ultirnate aim would be to :rnve a

"''''"'-"·'· 1.rnder vvhi.ch all i.merests !10tified on the Torrens

Once mc\i°e it has become almost

of

and difficult for his .s.dviser to be Gertain about title can no be p,scertairh:::d th;;; La::id Transfer

lt is submitted 'that the time is

catch up ,Nitb the need:s of the

terisation of the Torrens c:ornnJ:i.ttc·e of i\.ust1aliar1t

,.\~/'e b;;eEeve t.hai be aimed at. Hs

progressi~1e suc-h as the of the ,1arious indexes and of survey records are appropriate and essential first syuem, the X intend to

and the implc1nentation of land TJ:1e c1JrreIJJ.t /\.1:rstralian futur2

outlined and its are of con,i.derabl.e

considered, It win be indicated ,rn,,._,,:u,,.,. for the endre com-

than mere lE,Id title and itustralian

of land title and land information

the l\t1.str.aJia.n states tte the c:rown is bdd under T mrem:

Jf land held under old :,yst,sm Crov.'n befor,e the fr:trodnction of Torrens ::itk. its estimate but it varies from about 1000 parcels in 1Queensiand 2.nd s,::,me bnd 1vithin a radiLs of at,,okt 20 km HDtmd A,.,C::elai(le in South to bet,,Neen I - of ftw 1:oital area of tlu:: States. of T..fe,,v Sou:tl1 '1Vak[: and 'Victoria" In f;a,r.,~h Sto;te the proce8g of co:crversion f!·on1t c1ld1 S?i/S!J:.iE~1]_1 to 'I,,rJ:-rrenc~ title is and utilising both and methods. ail held und·c:r old system title be brought under the; Torrens ,viE have occurred

the t<i4Ct·- £Jecac1.esL

where Cr,;.:iwa himd and administrative

land und,er the Torrens tb,'; .llegistrar-General rnay issue

f-'~evv S1outh T\}Valies'):) as the under

can atm be creatf;,d] for Crovm land held uncier lease.s 'The process of ccnversion land held m,1der Crown hnd tide to Torrens title win take considerable tirne and effori: and will be achieved over a nurober of years .. As far as I am aYvare there are no similar initia.til've~~ in the o'leher P;lnstraEan States.

There are at le'&St t•..vo other title systenrn which are outside the Torrens mining and IJeuoleum tenures. Those are 2Jde1inistered an,c, recorded

a separate governm: nt vvidn mining n::soun::•,;§. Some of it is ur:d,cr t:ilit-; C(r11tro1 of th1: Ftderal Cii-crvernn1ent. 1"hat has S11:'.rious consf;.:~ quences for th,e ,creation tid.f: and land in:fon:aatiorn as

40

constitute one of the impediments to the integrity of the Torrens register. Undoubtedly there should be firm government initiatives to bring all land in

each jurisdiction under the Torrens title system, eliminating old system and Crown land titles and recording mining and petroleum tenures as interests on folios of the Torrens Register. Until that is achieved, which is possible by using existing resources and technology, it is not possible to have integrated and relatively complete systems of land title and land information.

3. Computerising work in Land Titles Offices

It is understood that computers have been used in the Land Titles Offices of each State ( except in Tasmania)9 in some aspects of their tasks. The position in New South Wales up to 1974 is described in an article by Mr J.A. Griffith, Senior Deputy Registrar-Griffith, Senior Deputy Registrar-General, in 48 ALJ 41-46. Computers are used to produce several indexes, records and reports. Some of these are:

1. Cross reference indexes between registered plans and the title references of individual lots. 10

2. Nominal index ofland ownership, linking ownership and title reference.' 1

3. Dealings lodgment system and delivery sheets (of dealings). 4. Unregistered document system.13

The last item will have important benefits in office administration and for title searching. Computers will ultimately control in each State the updating of those indexes and will enable the making of final title searches (to indicate any change in the Register since the original title search).14

4. Computerising land title

Mr J.A. Griffith pointed out1S that there is a world-wide movement towards computerisation ofland titles and construction ofland data banks. However, it has proved difficult to convert dreams and theory into reality, as is demon­strated by the New South Wales experience. The Torrens Register Automa­tion Project (T.R.A.P.) was initiated in N.S. W. in 1969.16 Mr H.J. Hancock, Deputy Registrar-General said in 1980:17

"We confidently see the project as the blueprint for administration of large-scale land titles systems. It might well be a cornerstone in the inevita­ble comprehensive land information system in the future". It is believed that the N.S.W. experiments in computerised land title were a

world initiative. It has proved difficult to make the "jump" from using computers for various functions of the Land Titles Office to a computerised system of land registration and land title. The potential of computers in land title is highlighted in the following extracts:

"The possibilities and advantages of a computer system derive from three of

41

the b,r1sic ehara.cteristic.s of such~ at

programmer; it can earry sequence of and there can be stored within the sysl;,:::m

~,a,,u,,u,.·"~ of infonnation ·which can be de2Jt added to. subtracted any manner

us to m(mtion tbc criteria ,, computer. S.cJlT'f: of thene an: as follov.Js: a infonnat.ion to he handled whkh is of a well-defined nature; a situation

with the control ot a.,ece:ss to~ a:1d the need to rn.2.]ntBin r,~cords vvl:tich

v,hich must be done

ter.hnica.1 r:_:.:nc! rniHion tides in ]liJ.'.:::1.,~~i'. and in ,m.u,.u,,,.>CH.,H'~

that task an 1d La;id Tiilles has ca,1rned the T.R.,bLP.

In Nevv South Vvaks automation will commence deposited plans. That is

th,:c: initial birth to r:;r:i:1brr-2c-~ the entin:: range of ..... ,.,,,,,.,6

The systen1. EllH)uid then bf_~ buoyant to enabl,~ a .start to be n:1adc on the data capttire of the e1tire Torrens but 1n·ore lirn.it.;;iCf!

title

42

Ir1 }:~u.stria thtTe are abou.t district rfffites Vt1here land for each centraliJe

cc,rnputer,2Ci

different land

title inf,:irmati on

'\Vec:k. 1n I)ecein.he:r 1981 there vve2\; at-:iout 2.5 rniUion en,:ered on the

.an ultra rno~j .. ,ern dev,el= and

coverage tl.1:e _/J~ ustralLin ln Sciuth for Jand inforn1atio:a purp.c-;ses, :l file has

1Nhich rec,ords ,·::ach in.divid_1JD.l of l.2n1.(1 n-i the ""·'fr''" ,5 the ir)foJLirH1tion c0ntent ~Nith the detail~ on t~J.e certifi~a-te of tltlie,21 ]'lit:: \\le~;tern ,Ai.usi"-taJian L.;s:_]:1d Infoi-ination Serv_ice is sirnilar dir,,c:cUon.::2 JH01New:r, neither of thes,~ is a land i:iLk or sygt~n1 .gnri hrxv·e be: .. e;r1 for 12.11d. i:t1.forxnad0·JL

l'_he!\''.~ an: so11:1e ol:-rv]ou.s and cHfficuJti,e,s ~;vith the coric-ept of~

titles:

"a.

Hrn tract or

vvith sy~·tenis c,f I:rnd

U.S.A, as c,ysteJTi or J.and titl.e and

in a land to

c, .Automation of indexing through electronic darn mo,:e:,sin;:i, of

e. f.

producing an abstra.ct of title. Substii:uli010 of electronic data books.

43

i. Definition of the parcel by a survey ... '"24

The central concept or unit to which title and information must be related is the individual parcel ofland. It must be capable of being identified by a parcel identifier, which in N.S. W. will be the lot and the Deposited Plan (shown as 7 /701,203) or the lot in the Strata Plan (shown as 7 / SP 20346). Some of the probems encountered, which must be adequately covered with a computerised title system are improved methods of entering data, validating data, prevent­ing destruction of records and computer fraud. There will undoubtedly be much improvement after the system is introduced, partially through advances in technology. For example, currently most of the data entry in Australia in Land Titles Offices is through computer operators when documents are being filed or are manually studied. In 1967 Professor Whalan referred to the existence of optical scanners.25 Colin Tapper adverted to some difficulties which can be encountered when using such devices:26

"One avenue has led to the development of optical character recognition (OGR) devices. These devices use optical scanners to read the original text and to convert it into computer assimilable form. The development and operation of such devices has, however, revealed serious difficulties. Among the more intransigent have been those engendered by the enormous range .of differentforms of the same character in terms of typeface, style and size, and by the great amount of visual but non-verbal information con­veyed on the printed page, in the form of such things as paragraphing, indenting and footnoting. Such considerations cause no difficulty for the human brain but present almost insuperable obstacles to the mechanical scanners". I can foresee the use of greatly improved scanning devices for data entry,

coupled with changes in the regulations dealing with tlie preparation of instruments relating to Torrens title land, requiring the use of typing and typefaces which the scanning device can recognise and record.

On the question of storage capacity, one needs only to quote what Tapper wrote in 1973 (and is by now probably outdated):27-

"Systems with four thousand times the power of the most powerful machine of the early 1960s are already under construction, and it is envisaged that instructions will be capable of being carried out at rates of up to 10-8 or 100 million, per second. Storage density of up to 645 million bits per square inch is being claimed for some laser-based niem.ories, and elsewhere access times of less than one thousand-millionth of a second, 10-9 or one nano-second, have been achieved. Work is also proceeding on entirely different concepts such as chemical rather than electronic memo­ries which may succeed before the end of the century and which, if they do, could bring to the computer the compactness, efficiency and economy of the human brain".

The result of full automation of land title will be, as Professor Whalan

44

that "all fee simple titk:s vi/JI be ,::;ur,rtnt vri.th~n at1C rtrei:.~urate an,rI ftY::e frorn 1nany of the T .. Inknc..v,;vns that are I'.:t(Pi?l tine un1_1r,rary- ,::tr

submitted that thfo ~l:ate has. never bt:en achieved in the tion of tities and bas: r;,ddom be,~n in the Hcrwever, there are two additional needf: which should he :::onsid.ered before

being satisfied 1.vith eurr:,nt. progress and future: 2.11 ac:enrate to flt-Store fb.e

;'5,,

So far the: discuBsion eentred arov,:n{ the captere of data cadastre (detaili regarding ~and oth,.~r critical which a computerised tiHe nm:,t gfao of lot boundaries

Tlmt involv,~s technical ~ 0 .,,.,,,,-~ of the car:fastre. Trnditi.0na.R in.adequate and not. inJorn1ation of accuracy alt any pcint o;: tHE:e is also the need to cope with changes boundaries over a pe:-iod nf ,tiu1e, Af, !1.Ar )i;:_,.L Kurne out in an article rntit!led errors and doubtful Law Soc. J,

"the surface of the earth is not a stable rnecdun1 and all s,tructure:;,, to movement. This is f'L1rthfcr accentuated

c,;•,,c,,,u,6, excavation

the

"''There arc ~ev;::ral for any cf which be described s.s a syHcm of hrnd First and rnost

fund;cJ,ient:aJ a of the land it,el[ lies at the r,oot of "mrny system1f.: vvhkh proc:rs;;ed on th,~ ba.sis of the fa.nd in a

geographica:I sense for exampl.e, i;erfal and the subse-quent .o,f r;::omputer progn:unm,;o,s to describe any part of the: land

reference to tho:; of ills boundaries,, In srn::h system there 'Would be a guarnnii:ee ofcompk:te cov,ernge of aH the land in a

area, and an references woul.d be completely comiistent with each other, lt is that accurate of thr;; hmd itself i.s an

iin any system of fa.nd b a very de:tailed Land Data Bank

S,teering ();)1rnn1].tt1E:{;; ( tQ~ueens]and.) there is a difficulfres. It Is out reference to

45

discussion of thei!,e Queensia11d):3 1

cerrtury has gr~at variat~.ons i.n ~.,~r1ns ac-::~tiracy the dir:nensions and of the ext~nt to which colwrence had been established

it. Until th,c: V'5f'.'.' recent advent of a contrnl the of !:he cadaslral maps on the r:.c,;:urncy cf

the of the n1ap::1 c.:_;n'troi

maps

it no ne•rv rnapEi V/e·t,;,; reference:s wou:.d the dC.8,tA/ers ,,:vouJ.d often be ·-1N~ 0 angJ .,.m ~·urv;:;y :!.I11onu~

0fthtse maps vanes from mc.p tc map, to ,3nofJ.er of d1i::> ·cJine naap. This is d.1H; tc, tl1e fa,:;:,t that

tbt G,£1rht3tf211l S1JTVey i5 --

:1ot -'.'.'~·f ·L1n'ifc,rrn .z~cr.l1rac? evcri "-,tlit;_n::~ :i~}Alivid.ut.ll

Th,~:r~:- t;een.1~ rhJt rnvch df1:11trt tbat the

thal

1nap2 of m,y of land or of any land information

dra\vn maps transform pages of statlstics into

o,c an oui33

da:ta that Vv'ou!d otherwise take :ur ev·e:n \-Vf:1;;ks to rel21:~e aTud r::orn.prehend to be understood in a matter of rninutes. h is that ihe

of th,;:; fa tu.re 1vviH ht data vvith the elernenJs of the d.ata each a i.ha't can b'c: u:,ed in co,w.(c,::tirm 'iVith computer

i:o geneTaU;: the traditional c2t,dastre

inforrngtiort :9,11rposes i3 tand I)atE. as f.ofl.o\'/S;3';

,,,, l. 1'he bH~;ic 1,:,f the 'land. data bt:...n.k'} ]s tha,t there are n1any of our

;:;,ctivii:ies which are tied to individual fand d,etails of all such activhies

administrative b.11se\ vvhii.eh CEJJ1 tl1en be administrative ~:iurposes, and for p1anning f,,ff fut,u,c; 2, Positim1~, cf Parcels

the term 'l.:rnd data bank' or 'land based darn bank' also supposes of all

~)ank in tF~nn1s c:f (,setirch area:!./ "llhich the land data

on foe Co-arid Inay be

each of radius dimensi,rms anr1 orientation

fon:n ern1bodies a , Cia-ordimates would be

and co-ordinates would afao be made available to define the location and extent of aJJ and

and to define the routes and befovvground service wires and gas, It

co-ordinates to define geological would r,,eem e'ven the most rec . .Klt~:ss

of the myriad of co-ordinates thec,rist would advocate 'on-line' nf;cessRry to defi:Ee the conto~Jrs of

Such a bank would hav,~ an in addi.tion to the

om already in li 974;35 of :1:1Himate availabiEty of geocode identifiers (incorpor-·

_",,-··--,.,, that v.rin ,enable district or area searches and automatic block or street. However, are not

necess::try to commence of a land title V/hiht it is to commence computerisation of land tiHe without

that is a desirable airn to he achieved, Each cadastre purposes and a !!,~:t;,.i;rnwe

The following describes the

CadastrnJ Data Ila:,,~ is the

47

oi an on request~ ibe cadasr.ral land

The secondary Crndastral Data Base are: to store its data b such direct link to the

to enable the eslrcbEshment of a •1,c;1~1uo1.;,c11.1 records of other data files

,Nithin the any data that

rdated to a In bread. term3. the system is seen to consist of a rnaster

CadastraJ ])21.t;:: vv<hic.h storcr:s th·~ current land \?Ork of the State in co-ordina!:e :form.

a

.,:if LE,'J.dS

da1.::1

involves the of individual a device (like an electronic ac the lot

corners already d::awn the :,tamlard mapE. The computer then automat-calcnlates !h•:: lot's ,;:m the eartb 'c surface.

\VhUe could not be ,;onsidered r,s r;,ccur.CJ.te as thf numerical capture, it is never.i.heles:' deal faster and

very much dependent upon the accuracy the maps used for the of the informatim, is well ·within

limits for the vast majority of purposes. In Western A,ustralia, the mapping accuracy overaH of excellent

siandard. Thus the process was chosen for the capture of the lot boundaries.

1982. Inii:ial Itegion which includes

is ccbedvJed for -··'""'""·" the Ste.te

However, tl1e entire proce~.s ·,:vilJ rake

48

As the boundaries of the land parcels across the State are being captured, the more accurate numerical technique will be utilised to include new subdivisions and used to progressively upgrade the digitised values". In the Northern Territory, a computer mapping system called "Mapnet" is

in the "final stages of a pilot project"37 and will be linked with the Land Information System data.

6. The integrity of the Torrens register

A. Introduction

Professor Whalan, in 1967 hinted at the connection between computerisa-tion and restoring the integrity of the Torrens system:38

"It is not suggested that the application of electronic data processing and computer technology alone to the Torrens system will be sufficient to rejuvenate it, but the writer must leave until another time other heretical views as to changes that could be introduced either concurrently with, or independently of, the present proposals, the effect of which would, it is submitted, do much to restore the system's integrity ... "

, Some of those "heretical" views were indicated by him in 1970:39 "The aim of planning control is to ensure that development occurs in such a way as to maximise the value of the land to the community in a utilitarian as well as an aesthetic manner; incidentally the individual landholder may be expected to benefit from the advance of the community good, but basically planning imposes a social control that may conflict with and override the projected or potential use of his land by a landholder. It is submitted that precise notification to members of the community of the extent to which the community generally claims this advantage over each parcel ofland is a small price to pay for the advantage gained; it is also submitted that the place where this information should be recorded is on the certificate of title to the land affected, along with all other information relating to that parcel of land".

L.J. Newhook referred to those views and supported them:40

"The basic idea behind this article is to restore to the Torrens system a position of primacy as envisaged by its originator, and register all interests affecting a piece of land, to bind that land. Town and Country Planning zonings could usefully be included, both for ease of reference for searching before a transaction takes place, and also to utilise more fully all available computer operation time as suggested previously. Similarly, compulsorily taken land could be noted to this effect, as could drainage easements; nuisance, Health Act, noxious weeds and animal controls. All these things affect the value of the land, and as such should be able to be conveniently searched along with matters of title which also affect values. A computer

49

would be ideal for combining all these types of information together in automated-reference form, and could do the job much faster than any manual conversion of all existing sources and registries". I would like to consider more comprehensively the alleged lack of integrity

of the Torrens Register and how that may be restored. The New South Wales legislation will be relied on, but the problems discussed are of general applica­tion under all the Torrens title systems.

B. Some Concepts under Torrens Title

I will not describe in detail each of the basic features of the Torrens title system, but rather concentrate on those features which are relevant to this topic. Torrens promised that the system will have four"grand characteristics"41

certainty, economy, simplicity and facility. The first and third of those charac­teristics have been heavily eroded by developments most of which occurred after the introduction of the Torrens system. An objective of the system has been that the Register should reflect accurately and completely matters rele­vant to title to the particular parcel, except trusts and beneficial interests. Professor Whalan's 1970 article was aimed at a "partial" restoration of the integrity of the Register, by covering notation of trusts, land use planning and control. The current need, which in my view should be a long term legislative a.nd administrative aim, is to restore the integrity of the Register as fully as is possible. The certificate of title ( or, after computerisation, the computer folio) should be truly and accurately "definitive of the title of the registered proprie­tor" (Breskvar v Wall (1971) 126 C.L.R. 376, at 385, per Barwick CJ).

C. Overriding legislation

Professor Whalan regards this exception to indefeasibility of title as "the most serious derogation from the conclusiveness of the Register. The integrity of the Torrens system is being undermined by the ever-increasing number and variety of statutes which derogate from the completeness of the protection given by registration under the system".42 Peter Butt pointed out that "so great are the inroads into indefeasibility of title made by such statutes that it is now impossible to rely upon the Register as an accurate indication of the title of the registered proprietor".43

These overriding statutes relate to topics such as: 1. Local government legislation, permitting interests such as statutory

easements or licences to be created, or parts of the land being excised from the title and vested in some local government authority, without being recorded on the certificate of title or shown in any way in the Register. These may be illustrated by sec. 32(l){e), Metropolitan Water, Sewerage and Drainage Act, 1924, Micos v Diamond(l970) 92 W.N. (N.S.W.) 513, sec. 21, Pipelines Act

50

1967 ~ Trieste lrrvesU'J''.·!errts Ltl! v !lfVatson ( Council ( l 90 W l)

20 of Tt:Ttes, taxesJ :notJ.ces ',vhich de not need to br;: record ;;;d on the title. Some of these constitute a fini'c

on the

its, use or the i:'TtiHern,;;nt to deal fredy with ithe rw to cre2,te ir:terests osier h, vvithoui

J\;,cord.ed or noted. Ln any vvay on the ·Tnrren:s Thes,e systi;rn.s co,ver rninera1 resource:s, \11/ater res(r1uroes

The concept title includes ihe surface of the above 1:he surfa:e and the sub-smr::ace included in the title. the common law ,.vas concerned with title to laml, not ·with imprevements, structures and fixt1.Jffes which are affixed the fand form pc1rt of iL Those structures ex,c: foi:quendy nwre valuabk th2;,n the bare of land itself. In che law of vendor and the of latent defr::ct in titl::':

It incXurles u1atters:. iruch e:;; ·~ i\.n undisclosed publ.ic or

Ch. if~ i\n

and 1S:rni.th :1, ('ontract

V

the hnd Puckett

authcrities situated under rhe tkem there

@ Structures v,hich have been do not comIJ-ly wiU1 the conditions of approval) the exerci:,e of the local Council's :~tatutory power:, Governmem 1919; lUaxweU v Pinheiro ( A.1\LZ. Conv R 351; Borthwick v Walsh (1980) A1.l'1LZ. Conv R Severn! of the above are more to occur under old system tide, bult have

an to Torrens title land. Although the question of s,tmctures has arisen in connection vvith the sale of land and a issue is "what is the subject matter of the sale" and does include the structures, that transcends the coniracc and is clearly a tide question. \Vhether structvres have been erected with eo1mdl ir, a matter of land information rather 1tha11

bind lhe land and the structures, work of the 10ihole or of structures affect th,c ti'lle and

Rath J hdd that the CO'Jld rescind

5I

the contract because there was a defect in the vendor's title in that he did not have a "good title to the property lawfully capable of being used as a block of six residential flats"(Tambel Pty Ltdv Field(1982) N.S. W. Conv. R. 55~077). Clearly, local authorities cannot be expected to record in the Register informa­tion of which they are unaware. However, it is not too much to expect, in a computerised land information service and/ or in a computerised title system to have recorded the existence of orders, notices, charges, affecting a parcel of land and the structures on it. It is also not unreasonable in a computerised information service and/ or register, with digitised plans, to record the exist­ence, availability and position of water, sewerage, drainage, gas, electricity, telephone services and transmission lines. I would remind the "purists" who find all this unacceptable as being relevant to land title, that we are now in an era of strata title, in which the existence, position and nature of structures is also relevant to strata subdivision and separate title.

E. Proposals

There is solid authority for the proposition that environmental planning proposals and restrictions on use are public laws affecting the enjoyment of the land and not its title (Royal Sydney Golf Club v F.C. of T(1954-1955) 91 C.L.R. 610, at p 624). In the sphere of vendor and purchaser transactions a town planning restriction may constitute a defect in title if it prevents the vendor from giving good title (as explained in Harris v Weaver(1981) A.N.Z. Conv. R. 52, at pp 54-55; [1980] 2 N.Z.L.R. 437; and illustrated by Tambe/ Pty Ltd v Field (supra) ). This is one of the issues to which Professor Whalan addressed himself in 1970.44 Town planning restrictions and proposals were effectively non-existent when the Torrens statutes were conceived, They have arisen over the past 40 years and most of them even more recently. If the common law is unable to bridge the gap between title, use and enjoyment and value, then that can be achieved by legislation. It was not unreasonable for statutory authorities to baulk at having to furnish details of proposals under a manual system. Those objections will not be valid under a computerised system when all·parcels are readily identifiable by geocode and parcel identi­fier. Some of the New South Wales legislation under which land may be "affected" include Coastal Protection Act 1979, Heritage Act 1977, Mine Subsidence Compensation Act 1961, Public Health Act 1902, Soil Conserva­tion Act 1938, and a sizeable mass of Federal and State legislation dealing mainly with local government, environmental planning and resumption.

Such "proposals" or affectation of individual land parcels are included in projected land information system developments. In the Queensland Land Data Bank Project Report (1982) it is pointed out:

"It is conceivable that these' Administrative Restrictions' on land use could be recorded and made readily accessible in a Land Data Bank. The

52

responsible Departments and Authorities may be prepared to notify the Land Data Bank of their interests. This could be a simple step in the functional process but with considerable advantage and/ or protection to purchasers, the legal profession and the Authorities themselves". However, at least some of them should be notified in the Register. There are

a variety of methods of doing that, e.g. by recording them, or at least noting the legislation and authority involved in a separate schedule or part of the computer folio. That will assist in a material way in ensuring the comprehen­siveness and accuracy of the Register in reflecting restrictions affecting the parcel ofland, and will benefit the community, collectively and individually, in being able to readily ascertain and make informed decisions regarding land. However, many difficult technical, legal and practical problems will need to be resolved before reaching that stage of progress. One of these issues is "when does a proposal require registration or notification" or (expressed tautologi­cally) when is a proposal a proposal?45 This was referred to in the interim report of the Steering Committee constituted by the Minister for Lands to investigate suggestions designed to simiplify conveyancing (N.S. W., Novem­ber, 1977):

"6. The suggestion that a central register of restrictions be established is still under investigation but it does seem possible to create a register of restric­tions which in turn would simplify conveyancing and reduce costs ... 7. If a record of this nature is to be established, there will be the need for each authority to determine the point in the investigation and planning process where notice of the proposal will be made public and entered in the record. Under the present system, this decision is made by each individual authority upon receipt of an inquiry regarding land which may be affected by some proposal. Practice varies from authority to authority: some give an affirmative answer to an inquiry if a parcel of land may be affected (even though the scheme may be in the very early stages of planning, for example, while alternative routes are still under consideration) whereas other author­ities give an affirmative answer only when planning is well advanced and most doubts have been resolved. Wherever the line is to be drawn, some inquirers will be dissatisifed - either an intending purchaser ifhe buys and then learns of a proposed scheme or a vendor if a sale falls through merely because the land may be affected by a proposed scheme. 8. The Steering Committee is not yet in a position to recommend at what stage a proposal by an authority that may affect the use of land should become a 'firm' proposal that should .be noted in a central register or what sanction should be imp::ised or what protection should be given to a person searching the central register if an authority fails to have a firm proposal noted in that register. The Steering Committee considered but did not adopt a suggestion that no information should be furnished regarding a proposed scheme until such

53

time as the schen:ie lrn.8 readied th,:: stage of a firm

A .. , The

,,,,c,;r.,.,,,. to outline the

l!1

of land information service and its the purpose of this th!': accurate:46

n,.,n{uo~ rnay enJbn1ce i.echnical "md k:ga! aspec,i.s of i:he {}If

- as v;;eH a.s e1,1ery structure) eve~1t or 9Vork in1 on~ ov1e:r, under or connected with that of land".

L,finrl Ih1ta l3~t?tk. i~.; '°\;011tri1/:~ieil tern1. for colkctioe of data about land. The ,_vord 'bank' a connotati(~ns of i,nd 'withdravval" Bs in th,:;: money

L£i'.t.'!i!'.t 1m, .nr·n,nn

or large or irJr the facil.itie:s for collecilion, stnra;ge and

th,e

which einerges iis th,e urgent need for soda! Rfrd political ins10--:ii1atio:n. 1'i([()(lern govcrn1r1en.ts. d.o not g:.c)-vern any n:1core. 'I'he modern me,ropoli:s needs new governrnent fonns. Then:: an urgent need

reso1xt<>e~L Ivian n•cecls re~·,~-xa1nine BtI7td betvveen himself and hb environrnem. The

has bec:n de:,.nibed ;,12, .:1 for hmd inform,1,.tion The ha.s been 1,1ade in t,.S.A. during"·

i.his that d9.ta held in governmen.t filet: vvhich has not been not useful infornution. Land as other is prop,~rty and can be owmcd. Ho,vever, the infonrnrtion itself is vitai for the priv21te sectors and both haves. interest in ensuring thait it is and is available. The ne,ed is for a multipurpose lr:;,nd informatim1 relying on the of land as the common unit to which a informati,,Jn should b,c: linkeo:t Ia U.S.A. one comprehensive inquiry iden iifi,~d th:: :;ets of r,ecor6 r, which could be Hnk,;d to such a

Title Records. The records incl.ude all cc~venant;9 fi}rJ:rtg::ig,;~s an1d_ , .•. , .•.• ,.o•.,o

t.itles of tbe individual land

54

b. Fiscal Records. All data which affects the assessment and taxation of parcels. c. Public Land Management Records. These are the zoning and other

records which express the public's interest in land. d. Infrastructure Records. These records include those for highways,

sewer lines, transmission lines, utility easements. e. Resource and Environmental Records. These include the multitude of

information concerning the natural state of the land". A recent Australian study described the "total hierarchy of land informa-

tion availability and needs" as follows: "The study has identified three fairly distinct tiers in the total hierarchy of land information availability and needs: administrative, mapping, resour­ces/ environment. Between these tiers or levels there will be some overlap­ping and certainly there will always be the need for communication between, or joining together of information from, the three levels ...

The administrative tier embraces those organizations concerned with registration of interests, facilities for searching, taxing and rating.

The mapping function includes the facilities for automatic capture of survey co-ordinate data, automated mapping and to act as a store-house, distributor and controller of computerised co-ordinate data for spatial linking and areal aggregation purposes.

Land information systems of a resources or environmental interest are many and varied, often transcending "property" barriers ... " At the heart of the discussion of multi-purpose land information systems

overseas and in Australia is the need to integrate data held by numerous government departments and statutory authorities. In Australia it was found that a very good start can be made by relying on the detailed valuation and rating records of the Valuer General, water supply authorities and data held by mineral resources and forestry departments. The direction in which land information services should move was described by Griffith49 in 1974 in a way which is similar to the current practical approach in Australia:

"The contents of a land data bank are determined by the needs of the user and therefore the term means different things to different people. However, a comprehensive land data bank would be expected to have the parcel of land as the basic unit and contain data relatable to the parcel itself, such as legal description, address, title in all its aspects, zoning and restrictions on user, survey information and improvements, topography, rates, taxes and charges and sociological data such as occupants or family make-up, inci­dence of crime or accidents, school data and much more.

A comprehensive land data bank can be envisaged as one large file in one large computer oras more than one file in more than one computer as long as the files are interrelated and the computers have the facility to communi­cate data between files when access is made to the bank. As no one

55

government department or authority can administer all of the government activities in all the areas mentioned the need for many departments to provide information for such a bank and to be responsible for its constant updating and accuracy and the security problems that arise as a result, in my view almost ensures that any such bank developed, if it is to be successful, useful, accurate and secure, will be based on the interconnection of a number of files in a number of computers". The availability of such information on computer, related to individual

parcels ofland, capable of analysis and recall, will be of enormous benefit for a variety of purposes. Apart from enabling lawyers to obtain from one source all ( or almost all) information relating to a parcel of land, the availability of the data will have an important impact on making political and planning deci­sions. For example, it will assist in locating the best (or several alternative) position(s) for proposed public utilities, such as playgrounds, schools, librar­ies, hospitals, fire stations, etc. The following description summarised from the Management Summary of the Western Australian Land Information System ( 1982) indicates the scope of these developments:

Utilities information service The Main Roads Department, State Energy Commission, Metropolitan

Water Board and WA Fire Brigade are involved in an information exchange programme, to assist these utilities. Some benefits include prevention of damage by excavators to underground services; enable the fire brigade to locate rapidly reliable water supplies and be a ware of the nature of surround­ing buildings and properties when called to a fire. There are similar overseas systems, e.g. in Scotland "Susie phone - Dial before you dig" and in U.S.A. "Miss Dig".

There are some other studies and projects being undertaken, e.g. rural land management system and urban planning system, which are in the planning stages. All these projects build on the legal and cadastral map bases which are being provided for the whole State. There is no limit in theory on the property information which can be stored and recalled, linked with those bases. It is pointed out in the Management Summary:

"Additionally, administrative boundaries (such as local authority, census and electoral) are to be computerised. As each is completed, diverse applications will become possible in the study of demographics - having relevance in public health, education, crime, traffic accidents and numerous other applications.

Further developments beyond ST AGE TWO are in the planning stages. These are expected to bring benefits to rural land management, environ­mental planning and public utility services.

Thus once a reliable foundation in ST AGE ONE is established, it is then possible to overlay a whole range of special purpose information.

56

the forefront of v1<2,rld

.L.O.T.S.

The South Australian Land

various s.otirce:s, system and enables all or part of the information to be made available very

fer LOTS in rhe

.L{JTS an owner name and owner No allo,v

of Lr1~vner nurnbers on-line for ,,:lata ern.try. 2 - Enter data r<:levant to the LOTS file as re,,ult of

transacdons in the Office. Suh stage 3 - Creation of a file wJth a record for e:ich individual of

b1nif.l in the the infDrniadon content vvith that of a, ,:c>;;rtificate of title. In addition to the aJloiment index wa.s created

title

3 - On-line wen;; abh: 10 makt i:::s'.it.uted. At first there were fomteen there were 93 for C,overnment

w;ers ,Nere about 6 LOTS.

Stage 4 - Creating That included a record cf each valuation assessment in each

assessment to a certffica1te of tille referc:~nce. A street index was also created ..

5 - Toial LOTS bec0rme for titie, valuation end other associated

and Enquiry 1S

,Current an.cl

Office. The va3t eicurnents, e.g. fr,)m

of LOTS 'Nrote, in a report, that '"''"'-"··u" ,.,,, of the data base an, as yet m1tapped, beth in terms of

terminal net'work and information content ... Xn ahnost any i1:,e1I1 of infonna.tion can be added to the data base as ash: can be related to a lan::l

J~Ue oJ"" ,4d,rninisi'rtJtive: In.ter2:sls The LOTS team has started to F.faa.LT·J.·r. of ./1i,,drninis~

LraHve 198 ~ items and the presence leasts v,er;; added to the Lens file. Other matters being considered iTtdud,~

are file:,.

The

·1un,,·,p·,··l1,•0 c beneath notiJicci.~ entry is

F.A.LN.T.: The Land report identified the need for ,I central 1espon~.es to.:

90 of the L2rnd 2-;nd Business

on th\~ C,ertificate of Titk,. Jri therf~ .fare over llh] i\.cts of Parlirnent in sorne 'Nay,

restrict the abifrty of a proprietor to udlis,e land" The ·/ast are not recorded on !the nor any other central registry. On the oth,er the Land and BPsiness Act defines some I6 or By-Laws that rise to enquiry, but these are included in the above 140.

iis noted in 5 ad.1ninhstrative interests are fl(D 11N recorded on

little detail other than thr:: absenee or presence of an in the latter a refe1°1~ni.ce to the fun details .cif the inter,sst.

centraliE,,~d file for tbe of fuiJ details of (:rovernmenl

58

Authorities interests in land.

LLS.

\Ve~.tern l'lusiralir, has a Laud Information ffovel­Sun1-

in November I982 it is. In a

of the Land Information out:

"·At the core of the process is the need for acc,.~ss to infonnation -information "Nhich is accurate, up to date 2.ccessible in different forms al: different stages of the process .

Information concerned land

'?vat.er resources~ etc, and m:cmy fonm of si:atistical tabulations such as the distribution of the tion and. c~f 1he e,eonornic '\ves.Jth .,Jf 3Jl of 11vhich rnay be

fa,dlities. 4. T(j n1ake

maps as a

certificates of references of land microfi.che and is

n1.:1ny other activities'./~. had similar, but not identic::al

at considerable cost and with

the f1ever­t.he

SllGC,f,:SS, 'iVhik maintain~

and

on land t·~nure and base

59

lan.d .. 'These tvvo indexes. u11n1e~

The legal ,~ac,astr,;; and aad That enabk8

s11rvi::':yors) etc, to hav1:: deta.i1s of frmd or localidts ovt in either tabulat,~d

are some of the of L.LS.:

To n10nitor the 1Doverneat of unregistered in the ()ffict cd~ Title;s. B. G-;.crvern;ne?tt }' .. }tOJ,Jerty

To list c:::·ov(~r:nn1ent tY~Nned so.1ne vvant to include assets on each property 2nd details ai:Hrut tlv;ir maintenance. A Crown l1eserve5 will cover about

rn nr·o,:es,s1ng of Ei. ne,N lease

T :::, indicate land use on individual of JamL That

tl,Jn 1._:/bicl1 it ~vviH be to Q btain frcdn the s,~rvice: H·Find the o--Nners of all laxid :/~ k.1n either 3flde of Srnith Provide a full repon:.

'X' in the .Metro. ,8J1d list the certificate of title hn-d

lfl.nd" ')(' but

b::.:tween 3rd tAarch 1969 mnd 16th July 1973. Produce a full report rinrJ. shc»v.: the ]_and cross hatched on r:naps, ai 1 :50:Q(:i,

Find

Find all the res.eJCves ve2te(1l in G)'(~for the purpo1:se cf~recre,a-tion' in foe Metro. What is the total area of the identified?"

h tn1derst,,J,nd th.at this JS the nltJs-i: Australie .. The: :,3,:stem is o·,•/m:od the

b1::: :~tored of land, Th;:::-;:re is access r.ounters ~n Darvvin arr..d /\Jic.e Printouts a.re

60

At present the s,':rvice i" frt•::, but

}efA,.fld lJSE_RS

LANDS

Surveyor (lrif:neral Lan.d .A.drninistration

Pa::;-toral Lesses L211d Saie:s Land Land Us,;: (83) Palmerston Rates (83)

VALUER GENERAL

in V!arct,

,OTJf-fE.R U.SE_tY,.S

T·L T. Folice Force

C.'.onservation Corn111ission

(-::on1nnission

NTPS

U.S. D.ATi\. B.ASE

T & W - Roads Divisi'.)n

-· '\fl ater Di vi3ion

Education Far::ifriies

1~~hief Minis,ern

~Adrninistrativ,e Services (Federal)

Real Estate

General Public

6!

of

OUTLINE OF INFORMATION CONTAINED IN L.l.S.

There are 356 data elements that can be stored against any parcel in LIS. The significant areas covered are:

Surveyor General Parcel Identification and Status Address Rating Code Creation Data Survey details, approvals and parcel area Surveyor General comments Easement Details Public Plan References

Valuer- General Statutory Valuation Date UCV Details Area of Valuation Objection Details and Results Unreleased Valuation Details Pilot Capital Valuation Study Property Improvements

Inspection Details Land Use Code Construction type and age Building areas Rent

Registrar- General Strata Title Units Unit Entitlement Volume/ Folio Reference Tenure type details Ownership Details Title area Dealing details

Lodgement date and time Registration date and time Parties to dealing Lending company details Dealing amount and other consideration Sub-lease dates

62

Planning Zoning Flood Level and Cyclone Surge flags Geozone code Planning applications - subdivision

- development - change of town plan zone code

applicant file reference significant meeting and approval dates exhibition periods gazette notice details appeal details and dates consent approvals proposed zone code changes application comments

Land Allocation and Sales Comments about Government land (restricted/ unrestricted) Allocation and Sale proposal

Proposed owner details Application dates Proposed allocation area Proposed approval details Sale date Price Proposed cancellation details Proposed use Comments about proposals (restricted/ unrestricted)

Land Administration/ Pastoral Leases Non-registerable tenure details User details Lease period Property name Lease rollover details Lease reappraisal details Lease inspection details Reserve proclamations and vested details Rent

63

Building Applications Applicant details Building Application date Construction materials Application approval details Certificate of completion details Certificate of occupancy details Amendments to applications Regulations waivers Estimated Cost Building purpose Building classes and area Comments

E. Other States

There seems little doubt that the other States are each involved in develop­ments heading in a similar general direction as S.A., W.A. and N.T. The Queensland report has been referred to throughoutthis paper. In New South Wales there is an Inter~Departmental Committee on Land Information. It prepared a report in 1981 recommending that:so

"the goal be the development of a comprehensive co-ordinated system constructed from a number of functionally distinct sub-systems;

the immediate aim be to ensure that independent systems, so far as possible, be capable of being linked to provide a comprehensive system; and

the committee be empowered to monitor the development of all systems recording land based information to ensure that they take place in a consistent form and with a minimum of duplication".

This Committee has continued to work towards development of this project. In Victoria, "Landata" is being developed, to compile computerised details

concerning every parcel of land in Victoria (over 2 million parcels). The current objective is to plan the project and to acquire equipment. There is a separate project involving the computerisation of the Titles Office. In the Law Institute Journal, in April 1983, in an article describing Landata, it was pointed out:

"It is planned that the system would progressively build details of owner­ship, title, value, rates, measurements, town planning and zoning restric­tions, easements, statutes and regulations governing the property, its use, planning, improvement and environment.

The planners propose to work in stages, keeping each stage as simple as possible and creating a bridge to the next step, so that the amount of

64

Information will be i ncreas,.ed ~".

n1 land and land i.nforn1:ation 5ervi,;es. There is no doubt

that lhe quality and ofland inform2ction nrnst cope 'Nith the social demands of the t,;ventieth century and for accurate and sources of information. That 1Nill h:ave irnportance for social and economic decisions and :;.,lanning on a macro and micro scale. lt will affect land. as cornputerisa.ion will continue to have a

in i:his area. That should al:;o in some teduction in costs.

lFOOTl'•TQ;'JrES

L Published in (1970) N.Z.U.LIC

At pp 1-3

3. "·Ekctronic Con1.puter Tec:hno]ogy and d:_e Torrrens 2yster!i~~ {1967) 40 AJ~.J. 413

'.1epor1 ·DH the La,N Rela6ng to Conv1~yancing {1976) at p 58

5. Real Property Ac!.:, ]900, Part HI

6. Sec. !JD(]), lJJ

Sec. 13(2), BA:

8. S.t(\ 13(2), TI3B, !3C, 13Df3}

·v'lhe:re :the relatively lovv voh.n11e o:!' ·~i.·ansacti,1)ns is considered at con1puterisa-d.'.Jn unecon.::,n1ic

10. 48 A.L.J . .at p 46) also exi~,ting con:cputerised in Snuth AuslraliH f.'.l:nd in 111'\/esterr:

IL

l':3.

14.

A,ustralia the lauer it involves 30))00 rlans relating to the 700,000 pan::eh; of land)

That exists in South Austta]ia and in VVest1er:..1. Australia {~vvhere tthe ~urn,au,,01100,mm nf that index involved recording the information fron1 800,000 certificates of 'Vv'ales there is a index 'Which a sin1ilar but not som1e vendors or Rndexes are kept in bound volun1es, but their maintenance is not fully ( or partly) cornputerised

In N.S.\iV. there was a computerised systre1n since !.970

on vvhich considerable 1v\1ork is being done in South Austra~ia

That is certajnly the in~enti.of:l abo an objecfrvi of A.R.LE.S. in

65

and Westen1 Australia Vi,~itoda. H ,~,m

(19'14) 48 A.LJ. p J.}

Descrih".:d in (S 1:n1inar graduate

A.L.J. at for J.A.

'""''-~"m,cuuu in the 19:30"s tind Lecture ]II, C,1~nveyancing:

2n Departrnent L2.•,v 1 University of Sydney in ] 980)

19.

20.

P "Oi'essct D.J. 'Vlhalan (l-967) .:!,,Q l\.L.J. 413-, at p 4i3

Report en the La ,-,,1.1 Relating to Conv,~yancing { ~ 976) AustraHan Capital Territo.t'y1 at p 59

IV1y r.r;pcrt Sirnplified C,J.ff/•tyancing in i'tustrr~lla ing, Bt pp 52-53

2l. La~1d 0'Nnernhip r.1.nd Tenure Syst'=n1 (LOTS)

La?; Reforrn c.urrnnission c,f

"'Land lafo:rrnation and Journal 1

Tyventy-first Centuri1 i( l 98D) 15

40 .A ... L.J. 413, fft pp 417-418

(1967)

V't/ ood rna n~ The OJ" 1\teal Property in }le'vV

Cornputers and the La·1.v (1973) cJ p 290

3 l. Appe:ndix G to

Real Pr,nperty, Probatt and Tn.1.~t JourD.a]. 8.90~ a,'~ pp 893-89~

35, (1974) &'.!'6 i.\.lL.J. at p 43

36. Report by Ivfr E.J. Lavender1 The Iv1anag.~r of L.O.T.S. (S.A.)

37. Land Information System in the Northern Territory {April 1983)

33. (l %7) 4-0 A. L.J. 413, at p 424

(!970):4 :N.Z.ll.L.k. 1, 2t p 6

(£9/J.) 1 Auck U.L.R. at 25

41. fn an elec.tivn s?:::ech ia 1357

The

352

67

_Duncan 32. L.G.R.A ..