Publication Type

Journal Article

Version

publishedVersion

Publication Date

1-2009

Abstract

Torrens registration has revolutionised land law, in particular the law of conveyancing. However, the precise scope of Torrens indefeasibility — which lies at the heart of the system — remains poorly understood, especially in respect of its relationship to the so-called ‘personal equities’ exception. The key to disentangling this web of confusion lies in accepting that personal equities, properly understood, do not actually form an exception to indefeasibility at all. The two concepts operate on completely different planes. In practical terms, this means that three crucial points must be understood. First, the Torrens system is intended to prevent adverse claims on the basis of prior title and no more. Where a claim arises out of circumstances independent of prior title, Torrens indefeasi- bility does not preclude such a claim, irrespective of whether it is premised upon notice. Secondly, both the common law and equity have developed complex means by which legal and equitable property are protected. Not only is the vindicatio employed, property rights are also protected obliquely through the law of wrongs and possibly even the law of unjust enrichment. Such claims are premised upon prior title, even where liability is established by means other than notice or strict liability. Accordingly, these claims do not survive Torrens registration. Finally, so long as the basis of the claim is not some form of prior title, the claim itself may take on proprietary attributes, usually but not always of an equitable flavour.

Discipline

Commercial Law

Research Areas

Corporate, Finance and Securities Law

Publication

Melbourne University Law Review

Volume

33

Issue

1

First Page

205

Last Page

234

ISSN

0025-8938

Publisher

Melbourne University Law Review Association

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