The prior certificate of title and wrong description of land exceptions to indefeasibility: Resolving the overlap

Research output: Contribution to journalArticle

Abstract

From its origins in South Australia, the Torrens system of land registration has become a truly global export. With the notable exception of much of the United States, its reach in the Asia-Pacific region (most notably in the Philippines, Papua New Guinea, Singapore and Malaysia) is extensive. However, despite a broad acknowledgement that indefeasibility is the linchpin of the Torrens system, there is a far less harmonious approach on how this concept should integrate with established property law doctrines. With Australia and New Zealand adopting immediate indefeasibility, other countries have softened the often harsh, immoral nature of this doctrine by preferring to utilise deferred indefeasibility. The debate between deferred and immediate indefeasibility has long raged and a doctrinal remedy appears intractable. The purpose of this article is to see how consumer law may inform the argument. The purchaser of land is no less of a consumer than what we may intuitively associate with this term, and given the higher expense, greater risk and more embedded emotional commitment associated with the purchase of a home, the consumer safeguards are no less deserving of consideration. The suggestion is made that immediate indefeasibility can meet consumer goals, but that greater education is needed to ensure that the fragility associated with title in the Torrens system is understood by its consumers, and that safeguards can be taken to protect against loss associated with the adoption of this doctrine.
Original languageEnglish
Pages (from-to)240-258
JournalAustralian Property Law Journal
Volume17
Issue number2
Publication statusPublished - 2009

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