Land Law Before Torrens

Intro: * Torrens system relies on a centralised bureaucratic land register as the principle means of determing title to land * This can be contrasted with earlier common law systems which relied on oral evidence and later certificates of title to determine title

Traditional Forms of Land Conveyancing Read MacDonald et al pages 263 to 283 * There have been three systems of title known to law existing prior to the introduction of the Torrens system: * Public conveyances * Private conveyancing * Old system title * Transfer or creation of an interest in land in feudal England were “public ceremonies” – public tradition was known as “feoffment with livery of seisen” * The public ceremonial system gradually shifted to one involving documents as literacy altered social practices, and hence this led to the rise of “private conveyancing” * Private conveyancing involved a combination of two types of legal transactions: “lease and release” and “bargain and sale” * Lease and release system was a variation on the formal transfer of a fee simple interest * Leases were not regarded as property right and therefore did not need to be executed by a public ceremony (as did an actual transfer) * Formalised over time in terms of documentation and statutory reform * Bargain and sale system was basically a transaction for the sale of land but without the need for the buyer to actually physically move onto the land as part of a public ceremony * If a vendor contracted to sell his land to a purchaser, upon payment the vendor was said to have “bargained and sold” his or her interest in the land. * Upon payment the purchaser acquired an equitable estate in the and, leaving the vendor with a bare legal estate * Lawyers soon combined the bargain and sale method with the lease and release method to effectively “privatise” conveyancing * The vendor bargained and sold the land to the purchaser for a leasehold term * A leasehold was not an estate of “freehold or inheritance” therefore the bargain and sale did not need to be enrolled pursuant to the Statute of Enrolments 1535 * Equity regarded the vendor as seised of the land “to the use of” the purchaser for the leasehold term * The provisions of the Statute of Uses executed this use and the legal estate in the leasehold term was vested in the purchaser without any need for actual entry onto the land * The vendor then completed the transaction by “releasing” her or his freehold reversion to the purchaser * Through the use of this method of private conveyance the requirements of publicity and entry onto the land to perfect the conveyance were abrogated * In short, there was a shift from a public ritual to a private ritual between sellers and purchasers. * Over time the requirements for these transactions to be reduced to writing increased and this led to documentary title becoming the norm * Old System Title – basically meant transactions for the transfer or creation of interests in land had to be in writing according to statute * This was a system where each transaction would be recorded on a title deed and the title deed would be used to update a central register – this system was prone to error

* The need for a good root of title was due to the maxim nemo dat quod non habet (viz: no one can pass a better title than her or she possesses) * To establish a good root of title all the documents affecting a parcel of land had to be traced back to the original Crown grant * Because of the difficulty of tracing back so far the courts accepted a reduced standard based on the accepted practice of conveyancers which required a vendor to trace an unbroken chain of title back 60 years from the date of the current contract * Under this approach the documentary starting point was acceptable if