An Overview of the Notion of Indefeasibility
I. Introduction.
This paper will divide the question into two portions. Firstly, whether immediate indefeasibility renders landowners extremely susceptible to identity frauds, and secondly, whether deferred indefeasibility is the fairer option that should be preferred in Singapore.
Before diving straight into the meat of the paper, it is important to have an overview of the notion of indefeasibility.
A. Indefeasibility.
Under common law, fraudulent documents are void; only the real owners can grant an enforceable deed or mortgage. A title ensuing from fraudulent instruments can never form a good title for new transactions, even if the succeeding owners are innocent. Despite registration, the good title of the property is still vested in the real owners.
However, changes were introduced with the institution of the Torrens system of conveyancing. One imperative attribute is the concept of indefeasibility conferred upon the title of the registered proprietor. Lord Wilberforce in Frazer v Walker aptly considered the meaning of indefeasibility of title as “a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered.” Upon registration, individuals who were able to assert their rights under general law principles are barred from asserting those interests against the holder of an inconsistent title acquired by registration.
In Singapore, this notion is reflected in the statute as s 46 of the Land Titles Act (LTA), which extends indefeasibility to the registered proprietor, subject to various overriding interests and exceptions to indefeasibility expounded in the later segments of that section.
Through the years, there are two differing theories that courts in various jurisdictions have undertaken in their interpretation of this concept – namely deferred and immediate indefeasibility.
B. Birth of deferred indefeasibility.
Proponents of deferred indefeasibility argue
This paper will divide the question into two portions. Firstly, whether immediate indefeasibility renders landowners extremely susceptible to identity frauds, and secondly, whether deferred indefeasibility is the fairer option that should be preferred in Singapore.
Before diving straight into the meat of the paper, it is important to have an overview of the notion of indefeasibility.
A. Indefeasibility.
Under common law, fraudulent documents are void; only the real owners can grant an enforceable deed or mortgage. A title ensuing from fraudulent instruments can never form a good title for new transactions, even if the succeeding owners are innocent. Despite registration, the good title of the property is still vested in the real owners.
However, changes were introduced with the institution of the Torrens system of conveyancing. One imperative attribute is the concept of indefeasibility conferred upon the title of the registered proprietor. Lord Wilberforce in Frazer v Walker aptly considered the meaning of indefeasibility of title as “a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered.” Upon registration, individuals who were able to assert their rights under general law principles are barred from asserting those interests against the holder of an inconsistent title acquired by registration.
In Singapore, this notion is reflected in the statute as s 46 of the Land Titles Act (LTA), which extends indefeasibility to the registered proprietor, subject to various overriding interests and exceptions to indefeasibility expounded in the later segments of that section.
Through the years, there are two differing theories that courts in various jurisdictions have undertaken in their interpretation of this concept – namely deferred and immediate indefeasibility.
B. Birth of deferred indefeasibility.
Proponents of deferred indefeasibility argue