Submitted by admin on April 22, 2009 - 22:15
The Torrens System
While investigations were proceeding in England towards a satisfactory system for the ownership of land to halt the chaotic conditions existing there, a system emerged in South Australia which immediately began to attract attention. It was sponsored by Robert Richard Torrens, who was appointed Registrar-General of Deeds for South Australia in 1853, and it represented a combination of the English registration of copyhold, the Roman-Dutch system of land transfer, and the system of transfer under the Shipping Acts. At the outset it was contemptuously described as conveyancing by means of a register and a map, but Torrens's plans have formed the basis of the land-registration schemes which exist today in all the Australian States, New Zealand, four Provinces of the Dominion of Canada, 17 States of the United States, and some 13 other countries or states.
The first Land Registry Act in New Zealand was passed in 1860 with amendments in 1861 and 1862, but the system achieved little popularity and only a few registrations were recorded in the Auckland district. The Land Transfer Act of 1870 represented the introduction of the true Torrens system into this country, and the provisions of the Act of 1870 are basically in operation today. The few amendments which have emerged over the years have generally been of an amelioratory nature and have only changed the mechanics of the Act in accordance with modern practices without departing from its basic principles.
The Land Transfer Act of 1870 provided that the following land should be subject to the Act:
All land which has already in any manner become subject to the provisions of any former Land Transfer Act;
All land alienated or contracted to be alienated from the Crown in fee;
All land in respect of which an order is made under any Maori Land Act vesting land in any person in freehold tenure;
All land vested in any person for an estate in fee simple in possession by virtue of any Act of the General Assembly; and
Land over which the Maori title has been extinguished before 31 August 1874, as soon as a Crown grant or certificate of title in lieu thereof is issued.
These provisions ensured that the land-transfer system would become the preponderant land system in the future. There was also a provision allowing for land registered under the deeds system to be brought under the provisions of the land-transfer system by voluntary application. This latter arrangement met with varying support in different provinces. In the Canterbury Land District, for instance, it achieved a large measure of support, whereas in Auckland it was comparatively neglected.
The two systems continued to function side by side in the same registries administered by the same officers holding dual authority as Registrars of Deeds and District Land Registrars under the Torrens system. The year 1924 saw the fortunate conjunction of an Attorney-General, the Hon. Sir Francis H. D. Bell, and a Registrar-General of Land, C. E. Nalder, who were instrumental in obtaining the passing of the Land Transfer (Compulsory Registration of Titles) Act of 1924 which provided for the compulsory bringing of all land deeds under the land transfer system. Thus New Zealand became the pioneer in the field of compulsory registration of titles, a step which had been vigorously campaigned for in England and other older countries. The work was to be completed in five years, but it was not till the 1950s that the task was finally accomplished.
The difficulty of issuing guaranteed certificates of title from the deeds system, which carried no like seal of authenticity, was overcome by the ingenious device of issuing titles which were stated to be limited as to titles or limited as to parcels, as the case might be. The limitation as to titles meant that there were certain requisitions as to title to be satisfied for the Registrar before he could be in a position to issue a guaranteed title with the full benefit of the indefeasibility provision. Similarly, the limitation as to parcels referred to the fact that a sufficient survey definition would be required before the title would be guaranteed as to boundaries and area.