The land transfer laws of Australasia: being the full text with side notes ... online

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security, and as a consequence, a more saleable commodity.

(5) That the form used for various dealings are of the simplest wording
and character.

(6) That the Government guarantee of title tends to favour this class
of landed security, and therefore, to lower the rate of interest
payable by mortgagors of such lands, it being a notorious fact
that banking institutions look with disfavour on titles under the
old system.

(7) That large estates can be divided and subdivided with greater
ease, and more readily, cheaply, and assuredly.

(8) That frauds are well nigh impossible under the system, as certifi-
cates of title show, by memorandum endorsed, all registered
transactions afiecting the estate.

OiiadTM. Whereas it may be said of the old system that : —
««SS" »yu (1) It tends to constant complications.

**" (2) It is certainly expensive.

(3) It often causes great delay in acquiring title.

(4) It gives no satisfactory guarantee to a purchaser of his title.

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The fee« charged for bringlDg land under the proTisions of the BeMonabia.
'^Torrens" BjBtem are reasonable. Where the land has been granted to
applicani direct from the Crown, and none of the land dealt with, the fee
is only 26. in Tasmania or 5s. in Victoria, and in the other Colonies more or
Ims, taking their relatiye size into consideration ; where the title of the
1 i^plicant is any other than Crown granted a fee ranging from ten shillings
^ for a £200 to £2 lOs. for a £500 or larger transaction is charged. This,
Vi^ded to one halfpenny in the £ assurance is aU applicant has to pay to
ncare the advantages of the system, and to these charges he has, of coarse,
Ids solicitor's costs to pay in addition, if one is employed, which, howeyer,
ii not always necessary.
f Haying now stated some of the leading features and advantages of the

"Torrcns " system, a few lines added explanatory of the following incidents
tlereof , in alphabetical order, will be found to be of interest, viz. : —

1 Administration of Act and Machinery. iiioid«nt«of

2. Brmging Land under Act.
8. Caveats.

4. Certificates of Title.

5. Creditor's Bights.

^ 6. Deprivation of Land.

t 7. Easements.

8. Husband and Wife.
' 9. Insolvency.

10. Joint Proprietors and Tenants in Common.

11. Leases.

12. Mortgages and Charges. ,

13. Powers of Attorney.

14. Begistration Abstracts
15: Settlements.

16. Title of Proprietor.

17. Transfers.

18. Transmissions.

19. Unregistered Listruments,

Administration of the "Torrens" or ''Land Transfer" Act in each Administn.
colony is usually carried out in one public or central office in New Zealand, maofaineij
there being an office in every Provincial District. In New South Wales,
South Australia, Queensland, Tasmania, and Victoria the central system
prerails with its one head office, the business outside available distances
heing conducted by agents and correspondence with such head office. The
writer is, however, of opinion — colonial prejudices entirely apart — that the
New Zealand principle is the best, because designed to be the most popular ;
tbe system being of ready access to everyone, thus minimising the

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opportunities for fraud on the department by reason of the Begistrar, from
his local position, having a close and daily knowledge both ef titles, dealings,
and persons, as well as the other advantages derived from Provincialism as
opposed to Centralism.

The " Chief Officer " is usually styled " Commissioner," " Registrar,*' or
'' Eecorder of Titles." He is assisted by the necessary clerical staff, and par-
ticularly by " Examiners of Titles," who are usually barristers or solicitors,
or both. These are appointed for the purpose of ascertaining the state of titles
submitted, and on which registration under the Act is applied for. They
have power, if need be, to call for abstracts of title, and whether made thereon
or on the " Eegister " affecting any property, they can make requisitions on
the titles disclosed. The deeds relating to the land are surrendered for
cancellation if the land is brought under the Act, otherwise they are
returned to applicant ; as also, if they relate to other land, in such case
being previously marked — " cancelled " as to the land brought under the
Act. On the Examiner of Titles, therefore, devolves the responsibility of
determining what titles shall pass, and what dealings shall be registered.
Power is also given to the department in addition to what has been or will
be stated hereafter ; —


(1) For the rectification of errors.

(2) For summoning witnesses, who may be examined and on refusal
punished for contempt.

(3) For selling (or altering) forms of dealings, &c., <fcc.

(4) For stating a case.

(6) For the surrender of certificates (if issued in error or incorrect)
for cancellation or rectification.

(6) For inspection of documents.

(7) For entering caveats.

BSeord^ The books for entering transactions and dealings are simple in character
and few in number, being usually —

(1) An Application Book containing particulars of all applications to
bring land under the Act.

(2) A Eegister Book containing duplicates of all certificates issued.

(3) A Journal containing particulars and notes of lands brought under
the Act, and of instruments registered.

(4) Nominal Index of persons who are entitled to any interest in land
under the Act.

These books, with the usual receipt and other routine books, with all instru-
ments presented for registration form the working machinery or materials
of the system.

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This is a simpler matter than to minds non-accustomed to Colonial Con- Bringing

Iftnd under

Teyancing would at first appear. All the six Colonies touched hy this work Act
baring heen ** constituted " within the last seventy years, viz. : — ^Tasmania in
1825; South Australia, 1834 ; New Zealand, 1840 ; New South Wales, 1841 ;
Victoria, 1850, having till then formed part of New South Wales; Queens-
land, 1859. Matters of Conveyancing prior to 1825 were few and simple in
character, no doubt increasing with population in point of numbers as time
advanced, in every colony ; " Crown Grants " being the earliest reliable
root of title, and most generally met with. In 1856, the " Torrens *' system
sprang up, and rapidly grew to be most popular, till first one colony and
then another has adopted it. All titles derived from the Crown (or other-
wise) prior to the date of the first of any Colonial Land Transfer Acts being
brought under the system at the option of the title holder or proprietor.
All land Crown granted after such datefit- umt oB , a nd oap only bQ so -d^gtt
niA, being usually under it ah initio^ and can only be so dealt with. Thus,
year by year, the " holdings " under the " old " are getting less and less
in number, and are rapidly being swallowed up in the "Torrens " system.
Any person may apply to bring land under this Act who is either : —

(1) Proprietor in fee. ' Who may

(2) Tenant in tail or any person entitled to a life estate. brSgUnd

^ ' '^ ^ under the

(3) Holder of equitable or other title. "Torrens"
Forms of application are supplied which must contain : —

(1} Applicant's name and address. Partiouiars

(2) Nature of estate held.

(3) Situation of the land to be affected.

(4) Contents or area.

(5) Rights-of-way, privileges, easements, rights-of-water, lights, and

(6) Plan of land showing boundaries.

(7) Value of land and all erections thereon.

(8) Particulars of title, number of sections, rural, town, or suburban.

(9) Numbers and particulars of all mortgages, charges, liens, leases,
and other interests affecting the land.

(10) Names of tenants or occupiers, and whether tenancy by possession,
lease, or agreement, and whether adverse to applicant or not.

(11) Names and addresses of adjacent owners, so far as known.

(12) List of deeds, documents, &c., lodged with application.

(13) Whe i !ier any other deeds in custody or control of applicant.

To applications the following remarks also apply : —

(14) Trustee applicants must secure beneficiaries' consent, unless they Trustee
have clear power of sale and disposal. appUowte

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tenants in

(15) Life tenants must secure remainderman and reversioner's con-

(16) Guardians of minors and committee of lunatics, or person of
unsound mind, must apply in the names of the in wards respec-

(17) Agents holding power of attorney and authority to sell, must
apply in name of principal.

(18) Mortgagee must consent to mortgagor's application, which should
state : —

(i) Sums owing on mortgage, and mortgagor's name, address,
and calling,
(ii) Rate of interest and dates when payable,
(in) Date of mortgage, when principal repayable.

"Where a mortgage is to be paid off when bringing land under the Act,
a reconveyance is not necessary, the words "Received from the within-named
A.B., the sum of £ , in full discharge of all principal moneys, and

interest, secured by the within mortgage. Witness E.F.," being sufficient if
written on the application.

A mortgagee can also consent to the application, adding words to the
effect that mortgage is paid off and discharged, and so secure the same end.

If money is advanced in contemplation of land being brought under
the Act, the matter can in simple words be so stated at the foot of the
application, when either the deeds or certificate of title will be held till
mortgage duly registered on behalf of the proposed mortgagee.

(19) In case land is leased the following matters should be furnished : —

(i) The term of lease,
(ii) Bent and date when payable,
(in) Lessee's name, address and calling.

(it) Whether there is a covenant or right to purchase, and
amount of purchase money.

(v) Period when rights or covenants to be exercised.

(20) Applicants at any time before grant of certincate can by writing
direct that certificate of title shall be handed to a purchaser or other
person, same only being subject to stamp duty as on a conveyance
or other transaction, and of which such direction is in the stead of.

(21) Joint tenants or tenants in common desiring to apply and partition
can sign a memorandum setting out by plans what area shall be
allotted to each. (See also under " Joint Tenants.")

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Careats are of two kinds, and may be defined as notices to the Etegistrar OaTMts
forbidding the registration of dealings (1) against the bringing of land
under the Act ; (2) against dealings after land has been brought under the
Act. The former must be lodged within the time fixed by advertisement,
notifying that the claim to bring land under Act will lapse unless prosecuted
with effect within the statutory period. The latter are usually lodged for
the protection of lessees, mortgageeB, encumbrancees, or others, pending
completion of their particular securities, &c., Ac. Caveats are of use also
to restrain trustees in dealing with landed interests, whether contrary to
the terms of their trusts or impliedly so, and are for use in all cases where
improper dealings in the nature of fraud by registered proprietors are
anticipated or feared. Lapse of time is no objection to a caveat lodged by
or on behalf of a beneficiary or cestuique trusts, such being only got rid of
by an order of the Supreme Court or other properly constituted authority.

If W.B., in Specimen Form No. 4, sells all the land therein named, a c«rtiflc»t«
... . •ttat^e

transfer form, as in No. 3, is signed and a memo, recorded in the Eegister

Book, and again, on proprietor's copy (see No. 4 aforesaid), the record

alone on such certificate placing the purchaser in the same position as the

seller theretofore occupied. But if only, say, one-eighth acre of W.B.'s

land is sold, that portion only is delineated and described in the transfer ;

the transfer is noted on the register, and on the proprietor's certificate,

which, however, is not given to the purchaser, but a fresh certificate issues,

the old certificate being then surrendered for cancellation, but can be left at

the Land Transfer Office, and operated upon as to the balance unsold, or a

fresh certificate for such balance issued if desired. Thus it will be seen

that the proprietor of a freehold estate, without being cumbered with piles

of deeds and a " dubious past " or " uncertain future,'* by way of a set-off

for his covenant tor quiet enjoyment, as under the old system, has on the

contrary but one parchment to demonstrate his right to the land, but which

assures him a perfect title, behind which he need not go, and cannot if he

desires it, except in case of fraud, as shown hereafter.

The Forms 3 and 4, made use of for illustration, are (names being

changed) full copies of documents now on the Register in the Colony of New

Zealand, and they differ in no material respect from documents of similar

purport in the other six colonies. It so happens that No. 3 form is a

transfer of a small section, part of a suburban estate, cut up and sold in

building ^plots, but whether the vendor to W.B. derived title by grant from

the Crown or otherwise, so long as his whole estate passed by sale to W.B.,

one simple transfer, followed by certificate of title, in favour of W.B. suffices.

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The position is the same with W.B. had his purchase been of a large estate
instead of a section only. If a person cuts up and sells his estate in
building lots all he has to do is to deposit an approved plan, ^hich is
numbered and referred to as D.P. No. (Deposit Plan No. ) and work
from that.

rights^" Eeal estate whether under the " Torrens " system or the " old " is

assets for payment of debts of every description, and executors have power
to sell the same for the purpose of discharging liabilities, and all interests
of a registered proprietor, not being of a fiduciary nature can be taken in
execution and sold for payment of debts. All powers also which a debtor
might have executed in his own favour, can be exercised by the Sherifi" whose
signature will also pass the debtor's estate, after sale as provided by the
Statute Law of the different Colonies. Registration again of the writ must
be effected against all interests sought to be bound by it, but satisfaction of
writ when established can be entered on the Register Book.

tionofUnd The main object and great value of the " Torrens " system being fixity

of tenure, and perfection of title, it follows that to maintain this character
in its fullness anil entirety, the provisions relating to deprivation of land and
the remedies afforded a sufferer thereon should be (as they are) most clearly
defined. Any person deprived o£ any estate or interest in land : —

(1) In consequence of fraud, or Registrar's mistake, or misfeasance or

that of his clerk or oflBcers ; or,

(2) Through bringing such land under the Act ; or,

(3) By registration of another person as proprietor ; or,

(4) Error, misdescription or omission in any certificate, or in any entry

on the register.

May bring action against some person to be nominated in manner provided

by Statute as defendant ; or,
8ff^8t (^) -^g^i^s* ^^© person on whose application land was brought under

^om the Act ; or,

(2) Against the person through whom such erroneous registration was

made ; or,

(3) Against the person who acquired title through fraud, error, omission

or misdescription.
Porohasew Provision is made for the protection of purchasers and mortgagees bond

gagees pro- Jide toT Valuable consideration, and gives to the party aggrieved full compen-
sation and relief out of the Assurance Fund, so long as he shall have acted in
perfect good faith and bond jide^ and has failed to secure satisfaction in any
other manner.

ExoeptionB Breaches of trust or improperly using peal of Council or Corpora-

tion, or the registration of a dealing executed by person under legal disability
unless disclosed on instrument, form no ground for action against the

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Assurance Fund, and all actions against the said fund must be commenced
within sii years from the time right of action first accrued, or within six
years after any legal disability came to an end.

Easements though not registered affect land ; and under the word •
"Land" are now usually included, not only easements themselves, but
generally all corporeal as well as incorporeal hereditaments, and they can, as
well as rights of road, way or water, be effected by deed in simple form and
registered. "WhereTer an easement is created for use with, or annexation
to land, the Eegistrar enters a memorial thereof upon the folium of the
Begister Book relating to such land.

Married women and the status they occupy in most or all of the Colonies HwbMd
have been the subject of much controversy, difficulty, and doubt, but as it
has now for some time been held that under the " Torrens " system, apart
from the Married Women's Property Acts of the various Colonies, that the
transfer or other dealing of a married woman is sufficient without acknow-
ledgment or her husband's sanction or concurrence in any shape, and as she
may dispose thereof by will, her rights as woman as well as wife, appear
under this system to be independent of her condition.

In the event of bankruptcy of a proprietor there should be produced insoWenoj
to the Eegistrar or other proper officer authentication thereof by production ruptoy '
of an office copy of the appointment of the trustee, together with an appli-
cation by such trustee to be registered, which on being done, enables him to
bold the estate, subject to the same equities as the insolvent theretofore held
the same, any interest of a proprietor which the trustee disclaims, need not
be the subject of transmission, and the like of estates of which he neglects
to be registered proprietor in the like manner.

A joint tenancy or tenancy in common can be registered. A proprietor joint ten-
ia common having the title to his undivided share, and power of disposal tSoLlcj i
independently of his co (registered) proprietors. Joint proprietors are not *
each deemed seized per mie et per tout, they together form the " proprietor,'*
all must concur therefore in a dealing. The survivors in case of death of one
or more of such can deal as if all were living and to the like effect, but the legal
representatives of any deceased proprietor is entitled to the interest of such
deceased proprietor. If, however, the certificate of title bears the words
*' No Survivorship " indorsed it is otherwise, the survivors taking all benefits.
The like indorsement is also made by the Registrar in the case of all
transfers for public purposes, and, as we shall see hereafter, in the case of
'' trusts," the like indorsement prevails, thus preventing a less number than
those registered dealing with the land except on special order by a Judge of
the Supreme Court or other competent authority in that behalf. The practice
differs somewhat, however, in various Colonies. Reference should be made,
therefore, to each Colony's system for the particular practice prevailing in
wjy Colony.

, oonunon

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to imply
tal\ cove-








of mortgage

Sale on

Leases may be made fdr a life or lives, or for more than three years
(when for less than three years a lessee can lodge his lease and protect himself
to some extent by caveat). Forms are provided which do not materially differ
in substance from leases under the old law ; and to obviate verbiage the system
gives a special significance to such words as "shall paint outside every alternate
year," " paint and paper inside every third year," and will " fence/* and
"cultivate," and " will not cut timber," and " will not without leave assign
or sublet," will not use as a shop," and " will not carry on ofEensive
trades." The use of " implied " covenants also cuts down the length of the
lease to still simpler proportions, and bind both lessor, lessee, and their
transferors and representatives. The lessee's covenants are:— (1) To pay
rent ; (2) rates and taxes ; (3) to keep and yield up in repair (accidents,
storms, and reasonable wear and tear excepted). Lessor's covenants are : —
(I) "To enter and view;" (2) to re-enter on nonpayment of rent or
breach of covenants, or repairs not made. ^Luy implied covenants may be
modified or negatived by express declaration, and are deemed " several " not

A lease may be surrendered by the word " surrendered " being indorsed
thereon and dated and signed by lessor and lessee, and an entry will be made
thereof on the Register, or also in the case of recovery of possession in legal
form, on satisfactory proof thereof to the Registrar; but when a lease expires
by effluxion of time no entry need be made.

A transferee is " impliedly " bound to perform all lessee's covenants and
to indemnify him fiom the consequences of a breach thereof. Upon a
transfer of land subject to lease a transferee has the same rights as the
original lessor.

Mortgages are drawn, completed and registered, and have efEect much
in the same manner as they have under the English system, except that
simple forms are adopted and significance given to groups of words or
sentences, as in the case of leases before mentioned. There are implied
covenants in the mortgage for — (1) Payment of interest; (2) for keeping
in repair ; (3) for right to re-enter. Any other covenants can be specially
inserted, such as provision for instalments and the like.

A mortgage is discharged by simply indorsing a Memo of Receipt for the
money secured, dated, signed, attested and registered. If the mortgagee is
out of the Colony, and no one capable of giving receipt for mortgage money
at " redemption date," the principal and interest can usually be paid to the
Colonial Treasurer, and on the production of his receipt the Registrar will
enter memo of release on the Register Book.

If the mortgagor make default for six months in the payment of prin-
cipal or interest, or in observance of any covenant, the mortgagee can sell
usually after one month's notice in writing to the mortgagor, or left at his last
known place of abode, or on the mortgaged premises. The sale may be by

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private contract or auction, and advertised. A mortgagee can distrain for

arrears to the extent of rent owing by the tenant or occupier, and he has

ordinary remedy of a landlord as against his tenant. Foreclosure is not Foredoaore

permissible as under the old system ; but in lieu thereof a mortgagee,

after six months default of his mortgagor's, may require the Registrar of

the Supreme Court to conduct a sale, after advertisement thereof, of

the hereditaments under mortgage at which the mortgagee can purchase, S^jJ^^^er

which, if he do, the hereditaments are transferred to him free from all equity

of redemption.

The rights of mortgagors and mortgagees being distinct and separately J^^|j
confined to each transaction there is no consolidation of securities allowed
under the Torrens* system, the doctrine of " tacking " having no effect.

Sub-mortgages can be registered, the sub-mortgagee or " chargee " l^;"®**"
being deemed a transferee, subject to the terms of such sub-mortgagee or
chargee express and implied.

Attention is directed to a form of " Memo of Transfer and Creation of
Charge " in the Queensland Act, pages 157, 167, and which might with
advantage be adopted in all the other colonies, being concise and well adapted
to cases where there is a sale, and part of the purchase money remains on

" Charges " under the Torrens' system are brought into use to secure ohargea
annuities charged upon land. They have the significance of ** rent charges" ohMges
under the old system, and can be securely effected.

Inasmuch as a very large number of transactions take place by or under Powers of

Online LibraryAustraliaThe land transfer laws of Australasia: being the full text with side notes ... → online text (page 2 of 83)