Torrens title

At common law, the vendor of land needs to show his or her ownership of the land by tracing the chain of ownership back to the earliest grant of land by the Crown to its first owner. The documents relating to transactions with the land are collectively known as the "title deeds" or the "chain of title". This event may have occurred hundreds of years prior and could have had dozens of intervened changes in the land's ownership. A person's ownership over land could also be challenged, potentially causing great legal expense to land owners and hindering development.

Even an exhaustive title search of the chain of title would not give the purchaser complete security, largely because of the principle, nemo dat quod non habet ("no one gives what he does not have") and the ever-present possibility of undetected outstanding interests. For example, in the UK Court of Chancery case Pilcher v Rawlins (1872),[4][5] the vendor conveyed the fee-simple estate to P1, but retained the title deeds and fraudulently purported to convey the fee-simple estate to P2. The latter could receive only the title retained by the vendor—in short, nothing. However, the case was ultimately decided in favor of P2, over P1. The courts of equity could not bring themselves to decide against a totally innocent (without notice) purchaser.[6]

The common-law position has been changed in minor respects by legislation designed to minimize the searches that should be undertaken by a prospective purchaser. In some jurisdictions, a limitation has been placed on the period of commencement of title a purchaser may require.

The effect of registration under the deeds registration system (also known as "record title") was to give the instrument registered "priority" over all instruments that are either unregistered or not registered until later. The recording of the deed served to give notice to the world of the conveyance of title to the grantee named in the deed. The basic difference between the deeds registration and Torrens systems is that the former involves registration of instruments while the latter involves registration of title.

Moreover, though a register of who owned what land was maintained, it was unreliable and could be challenged in the courts at any time. The limits of the deeds-registration system meant that transfers of land were slow, expensive, and often unable to create certain title.

The first sale of land registered under the system was to pastoralist William Ransom Mortlock (later elected to the South Australian House of Assembly[14]) on 25 August 1858.[15]

Starting with South Australia, all Australian colonies introduced the Torrens system between 1858 and 1875. Since then, each colony, and since 1901, states and territories, state or territory has maintained their own land titles register of land.

The Torrens system did not replace the common law system but applied only to new land grants and to land that was voluntarily registered under the relevant Act. In Australia most land is held under the Torrens Title system, although remnants of the old system of land title still remain. All land in the Australian Capital Territory is leasehold (effectively Torrens freehold), while and much of the Northern Territory is held under Crown lease. Native Title is recognised as a separate form of ownership. Some land remains as Crown Land (i.e. in Australia, public land).[16]

The second Torrens jurisdiction in the world was established in 1861 in the then-British colony of Vancouver Island, now part of the Canadian province of British Columbia.[17] Canada, through the federal Parliament in 1886, implemented the Torrens system in the Northwest Territories.[18] It has continued to be used by the three Prairie provinces (Alberta, Saskatchewan and Manitoba) into which the southern part of the Northwest Territories was divided.[19] British Columbia uses a modified Torrens system. Since 1885, Ontario has used an English system,[20] which is not a Torrens system, but it has similar purposes. In Ontario, electronic registration led to this version covering almost all land, but the past deeds registration still governs some issues. For properties still under deeds registration, a 40-year rule governed title, but the government converted them under a streamlined process.[21] New Brunswick and Nova Scotia converted from a Deeds registration system to a Torrens title system in the 2000s, with the expense of the changeover charged to the purchaser.[22][23] The only provinces in Canada which do not have Torrens titles include Newfoundland and Labrador, Prince Edward Island, and Quebec, which is a civil rather than common law jurisdiction and instead uses the cadastre system.

Fiji's Torrens statute is the Land Transfer Act 1971.

The Dominican Republic has been using the Torrens Title System since 1920.[24] All of commercial property and most real estate within the main cities are registered and thus guaranteed under the system. An acceleration of registration for land in the rural areas is underway in the 21st century, to promote a more efficient and effective real estate market in the Dominican Republic.

Ireland first began to operate a Torrens Title system in 1892. So-called registered land (i.e. land held under a Torrens title) is recorded in the Republic of Ireland using a system of numbered county-level folios. The land registry is operated by the Property Registration Authority, a government agency, and records both freehold and leasehold titles, along with easements/profits-a-prendre, mortgages, and any other charges over land. It is compulsory to create a folio in the land registry if land is sold/transferred/subdivided, multi-storey buildings are erected, or a new lease (over five years) is created. The vast majority of land in Ireland (by acreage) is held under Torrens title as compulsory registration in the land registry upon sale has been a requirement in rural areas for many years. Compulsory registration was extended to the (more urban) counties of Cork, Dublin, Galway, Limerick and Waterford in the last decade, thus extending mandatory Torrens title to every part of the Republic of Ireland.

A Torrens title system was implemented by the British in Mandatory Palestine, and has continued in use since Israel's foundation in 1948. As of 2016, about 4% of the country's land area is still registered under a pre-Torrens, deeds registration system.

Malaysia has adopted three versions of the Torrens system:

• For Peninsular Malaysia, this is enacted in the National Land Code, Act 56 of 1965.[25]
• For the state of Sarawak, this is enacted in the Sarawak Land Code, Chapter 81 of 1958.
• For the state of Sabah, this is enacted in the Land Ordinance (Sabah Chapter 68).[26] Unlike the National Land Code and the Sarawak Land Code, the Land Ordinance (Sabah Chapter 68) does not provide any indefeasibility of title.

New Zealand adopted a similar system from 1870.[27][28] The Land Transfer (Compulsory Registration of Titles) Act 1924 brought most of the remaining land in the country under the Torrens system and by 1951 the register was considered complete, although small remnants of land may still exist under the deeds system.[29] The Land Transfer Act 1952 implemented the Torrens system.[30] In the 20th century, academics and judges disagreed about whether to interpret indefeasibility as "deferred" or "immediate".[31] In 1967, the Privy Council in Frazer v Walker decided that a registered owner will obtain an indefeasible title to an interest or estate as soon as they become the registered owner of the interest or estate (the principle of immediate indefeasibility).[32]

The 1952 Act was superseded by the Land Transfer Act 2017.[33] The 2017 Act introduces a judicial discretion to cancel an owner's registration of title in cases of "manifest injustice", which arguably frustrates the certainty of title considered fundamental to the principle of immediate indefeasibility.[34]

In New Zealand most land is held under the Torrens Title system, although remnants of the old system of land title still remain. Māori customary title (native title) is recognised as a separate form of ownership. Some land remains as Crown Land (i.e. in New Zealand, public land).[16]

The Torrens system was established in the Philippines on November 6, 1902 by the enactment of Act No. 496, "The Land Registration Act", which was virtually identical to the Real Property Act of Massachusetts of 1898.[35][36]

Russia adopted the Torrens system soon after the founding of the Soviet Union.[37] Currently, the accounting and registration system for rights to immovable property in Russia is governed by two federal laws, which have adopted some of the elements and principles of the Torrens system. Accounting for land, buildings and natural sites is recorded in a database of real estate cadastre under federal law of 2007 No. 221-FZ "On State Real Estate Cadastre".[38] Transactions by the account holder of these facilities is recorded in another database: “the Unified State Register of rights to immovable property and transactions with them” on the basis of federal law of 1997 No. 122-FZ "On State Registration of Rights to Real Estate and Transactions Therewith".[39] Both laws established openness cadastre and registry information, and assigned to a single organization responsible for their management - Rosreestr . Entry in the Unified State Register of real property rights is a necessary and sufficient condition for the emergence of property rights to real estate. For information about the property, contained in the cadastre and registry, sufficiently detailed and structured cover most essential information about an object runs open cadastral map.[40] With a fairly simple web forms can be found and read a part of the information on any object property.[41] These laws are not, however, establish an immediate full liability of the state for the correctness of the information contained in databases. In 2015, the State Duma has been registered a bill that covers public access to information about the owners of the property.[42] The bill was supported by the Government.[43] According to some experts, the restriction of information openness reduces the chances of identifying the public cases of illegal enrichment and increases business risks.[44]

Saudi Arabia introduced a Torrens system in 2002 with The Realty in Kind Registration Law, issued by Royal Decree No. 6 on 9/21423H[45]

Singapore adopted a version of the Torrens system beginning in 1960 with the Land Titles Act, Chapter 157.[46] Conversion of all titles was completed in 2001.[47]

Sri Lanka has introduced a version of the Torrens system known as Bim Saviya under the Registration of Title Act No. 21 of 1998. The Survey Department of Sri Lanka had started the process of surveying government and private own land for the entry into the Bim Saviya registration. As of date the process has not finished in land surveying and converting land owners original deeds into Certificate of Titles. The program has become highly controversial, with claims that it mirrors the reclamation of crown land by the British colonial government of Ceylon under the Prevention of Encroachments upon Crown Lands Ordinance No 12 of 1840 with the government taking over ownership of land its occupants cannot prove ownership of and the high possibility of fraud, lack of recognition of Certificate of Title issued under the Bim Saviya program and the lack of provisions for co-ownership.[48][49][50]

Thailand adopted the Torrens system in 1901 after King Chulalongkorn established The Royal Thai Survey Department, a Special Services Group of the Royal Thai Armed Forces, engaged in Cadastral survey, which is the survey of specific land parcels to define ownership for land registration, and for equitable taxation.[51]

States with a limited implementation include Minnesota,[52] Virginia,[53] Massachusetts,[54] Colorado,[55] Georgia, Hawaii, New York, North Carolina,[56] Ohio,[55] and Washington.[57]

The state of Illinois was the first state to adopt a Torrens Title Act, which used a limited Torrens system in Cook County after the Great Chicago Fire,[58] however this system was allowed to expire on January 1, 1992, after it was found to be unpopular with lenders and other institutions.[59]