Property Law 2 Notes
Indefeasibility * The conclusiveness of the register & bars 'retrospective investigation of title' aimed to achieve security and simplicity in matters of title to land * Protection of purchaser – they are ‘paramount from unregistered interests’ but still are bound by registered interests * Frazer v Walker – ‘indefeasibility of title is convenient description for the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys’
Real Property Act 1900 Indefeasibility | Statute | s 42 (1) – Key indefeasibility provisionThe registered proprietor’s title is not to be postponed against anyone (they are paramount from unregistered interests) * Paramount from unregistered interests * Subject to exceptions – i.e. previously registered interest in his land and frauds 40 (1) – Manual folio shall be conclusive that the person named in the folio as the registered proprietor is the registered proprietor of that estate or interest (evidence of title) * Not a major source of indefeasibility, but is designed to assist in relation to the proof of title * Should be read subject to the key indefeasibility section (s42)s 45 –Extension of protection: for registered proprietor who is a bona fide purchaser for value * this Act cannot be interpreted as to leave them open to a court action for recovery of damages or for ejectment or for the possession or recovery of land, on the ground that vendor may have been registered through fraud or error | | Case law | * Immediate indefeasibility: prevails in NSW: Frazer v Walker [1967] * Affirmed in Breskvar v Wall (1971) * Torrens system is ‘not a system of registration of title but a system of title by registration’ * An indefeasible title can be acquired by virtue of a void transaction or instrument (not confined to forgery) * Exceptions: in situations as outlined in Gibbs v Messer [1891] – a
Real Property Act 1900 Indefeasibility | Statute | s 42 (1) – Key indefeasibility provisionThe registered proprietor’s title is not to be postponed against anyone (they are paramount from unregistered interests) * Paramount from unregistered interests * Subject to exceptions – i.e. previously registered interest in his land and frauds 40 (1) – Manual folio shall be conclusive that the person named in the folio as the registered proprietor is the registered proprietor of that estate or interest (evidence of title) * Not a major source of indefeasibility, but is designed to assist in relation to the proof of title * Should be read subject to the key indefeasibility section (s42)s 45 –Extension of protection: for registered proprietor who is a bona fide purchaser for value * this Act cannot be interpreted as to leave them open to a court action for recovery of damages or for ejectment or for the possession or recovery of land, on the ground that vendor may have been registered through fraud or error | | Case law | * Immediate indefeasibility: prevails in NSW: Frazer v Walker [1967] * Affirmed in Breskvar v Wall (1971) * Torrens system is ‘not a system of registration of title but a system of title by registration’ * An indefeasible title can be acquired by virtue of a void transaction or instrument (not confined to forgery) * Exceptions: in situations as outlined in Gibbs v Messer [1891] – a