Last year I wrote a series of articles about possession and one about boundaries and the Torrens system. This week I want to tie them together.
You may remember that after the Whale Car Wash cases the state government changed the Real Property Act (which governs Torrens title land) to allow people to make possessory title claims. There were a surprisingly large number of valuable parcels of land where the owner by documentary title had seemingly forgotten them- as Mr. Beed and his family had done; there were even more odd bits of land- some were half acre blocks in towns that had never really developed and were used as grazing paddocks by nearby farmers, some were strips of land left between a road and a block of land after the road was rerouted, others may have been intended as roads but never dedicated as such...there were many reasons why people had neglected them.
The amendments allowed people to claim a lot in a plan, it did not –normally – allow someone to claim part of a lot. There was an exception- if a lot was cut into two parts by a road or a water course a person could claim the whole of the land even though he was only in possession of the larger part of it. That is an odd result because it defeats the possession –and remember our law particularly protects the rights of people who possess property- of whoever was ion possession of the smaller part.
But in practice that is not an issue because the Department of Lands requires a
n applicant for a possessory title to get his neighbour’s consent. And what is likely to happen is that the neighbour in possession of the smaller part will consent on the basis that the applicant transfers the smaller part.
And there is another answer to the problem where the boundary is a fence line rather than a creek or larger part .And here I return to the boundary issue in Clarencetown I wrote about last year where one neighbour claimed title up to a very old fence line saying they had possession of the land u p to the fence line even though their neighbour measuring their land from the supposed street boundary said (and they were right) that by the dimensions shown on their title plan it was they who owned the disputed land- some distance on the other side of the fence line. The court held the fence line is the boundary.
In a possessory title case one owner might not rely on possessory title at all but on where his fence line is. He may well say ‘both we and our neighbours have always accepted the fence as a boundary, and so it is the boundary.” Strictly he is relying on the fact that he is possession of the land but it’s a different concept. He is not claiming his neighbour abandoned the part of the land the claimant claims, rather he says that in effect by each regarding the fence line as the boundary they have agreed that it has became the boundary despite what the position as measured by dimensions shown on the title plans..
These answers do not help if someone only wanted to claim part of a lot- say (and I have seen this happen) a road cuts a large parcel of land in two- there is one part of say 95 acres and the other part of 4 acres from an original piece of land of 100 acres- the remaining acre being taken by the road.. The farmer who has fenced in the 4 acres cannot get a possessory title to it. The first answer doesn’t help because it’s only the farmer with the 4 acres who wants to claim title. The second doesn’t help because the road intervenes –the two neighbours no longer share a boundary.
This is still an issue that needs sorting.
(Local papers article week ending 27.5.2011)
Tuesday, May 24, 2011
Sunday, May 22, 2011
POSSESION IS NOT NINE TENTHS OF THE LAW- THE TORRENS SYSTEM- A TALE OF SKULLDUGGERY AND DECEIT
Until 1979 in New South Wales, it was not possible to acquire title by adverse possession to Torrens title land, section 45 of the Real Property Act 1900 said that the title of a registered proprietor could not be affected by adverse possession under statutes of limitation.
A once famous series of court cases shows what could happen. In 1921 Walter Beed bought (and so became the registered proprietor) of a house in Military Road Mossman Walter allowed his niece Jessica Beed (then aged 55) and her companion Miss Arthur to live there and went to America where he died intestate in 1933. Miss Beed also died in 1941 leaving Miss Arthur in the house. Two other ladies came to live with Miss Arthur, Miss Arthur and one of the ladies died leaving the remaining lady Miss Spark living there until in 1968 she moved to Queensland and instructed her solicitor Mr. Currie to organise a tenant. Mr. Currie arranged an agent who let the house to Mr. McLeod. During the time the ladies lived in the house they renovated it, they paid rates (the rates notices being issued Walter Beed c/o and then the various ladies names.
Meanwhile the neighbouring land was owned by Hamilton Rentals Pty Ltd a company controlled by Mr. and Mrs. Chambers and leased to another of their companies (Whale Car Wash Ltd). Whale then also leased some other parcels of nearby land.
Early n 1969 Mr. Currie was contacted by a Mr. Nelson Meers, a solicitor and a partner of a firm now called Gadens. Mr. Meers later became Lord Mayor of Sydney under the Civic Reform banner. Mr. Meers said he was acting for Whale Car Wash and offered Mr. Currie $2000 for Ms Spark’s interest in the land. Mr. Meers was also a shareholder in Whale Car Wash Limited. (As an aside to comparative values in 1968 my parents sold their home in Denistone – a Sydney suburb near Eastwood for $8000.)
Mr. Currie took instructions from his client and told Mr. Meers that she was not interested.
Later in 1969 a Mr. Ingram visited Mr. McLeod the tenant of the property Ms Spark had possessed. Mr. Ingram asked Mr. McLeod about the property he rented and then tried to persuade him to move. Mr. Ingram said he wanted to live there himself as his aged mother lived nearby and he wanted to live close to her to help her. Mr. Ingram was very persuasive offering to pay Mr. McLeod’s moving expenses, half his rent for the next year and some legal fees –in fact he arranged for Mr McLeod to see a Mr Riley whom he said was a solicitor. He also prevented Mr. McLeod from speaking to Ms Spark’s agent until after Mr. McLeod had moved out. A little while later Mr. McLeod went back to the house he previously rented and was surprised to see a young family in residence. He asked one of them- Mrs. Knox what had happened and was told they knew nothing of Mr. Ingram and that they leased the house from Whale Car Wash. Mr. McLeod asked Mr. Billerwell the agent who had let him his new house for the phone no of Whale Car wash and was given 969 2790. He rang that number and was told by a Mr. Riley that the manager Mr. Emerson was out and would ring back. Mr. Emerson never did.
Meanwhile Mr. Billerwell found out that Mr. McLeod had started living at the new house before he had signed a lease. Mr. Billerwell was sure he had not given Mr. McLeod or Mr. Ingram a key before then and reported to the owner who investigated the matter. The owner found that a panel of glass in a verandah door had been cut and part of the panel removed. The panel was large enough to get a hand through and open the door. Mr White later gave evidence of a phone call with Mr. Chambers to the effect that Chambers said to him "We needed the house that McLeod occupied for the car wash and I am willing to pay the difference in rent between what you normally got for the premises and wheat the new tenant will be paying."
Ms Spark soon found out what had happened and formally served a notice to quit on Mr McLeod, because he was still legally her tenant. (She had never consented to the lease being transferred to new tenant. Transfers of leases might be the subject for another article).She then started an action to ‘eject’ the Knox family. A little while later Whale Car Wash was substituted as the defendant and the case became one between Ms Spark and Whale.
The judge found these facts
• Mr Ingram was a false name and the story he had about his aged mother was a lie both used to persaude Mr McLeod to leave the house he rented from Ms Spark
• Mr Rliey was not a solicitor but probably an employee or in some way associated with Whale Car Wash
• Mr and Mrs Knox were tenants of Whale Car Wash
• The locks had been changed to prevent Ms Sparks’ agent from re entering the house
• Whoever Mr Ingram really was , he was acting on behalf of Whale Car Wash
He then held that because “Mr Ingram” had gained possession through Mr McLeod and because “Mr Ingram” was the agent of the company , Whale Car Wash could not argue that Ms Spark was not the owner of the property.
He went on to say that “Mr Ingram” by a number of false representations, a false story and a wrongful course of action , had fraudulently induced Mr McLeod to give him possession of the property.” He continued saying that Mr Ingram was Whale’s agent and that Whale (And all those associated with it,) were a part of a conspiracy (he called it the wrongful conduct of the company) .
And now I come back to where I started this series. Our law respects ‘possession’. Ms Spark had lawful possession of the property. She could resist anyones claim other than that of the true owner (Mr Beed or those claiming through his estate) while she was living at the property. Mr McLeod had rented the property and so acknowledged Ms Spark’s possession and her rights to possess the property. “Wrongdoers” (to use the judge’s polite word to describe the company and those associated with it)were in no better position than Mr McLeod- Ms Spark’s prior possession was sufficient title against the company as a wrongdoer. ..to hold otherwise would alloe the company thought its agents wrongful conduct to take advantage of his wrongful acts”
So Ms Spark won, the company was forced out, had to pay her costs and Ms Spark regained possession of the house in Mossman. But she was still not the owner because she was not the registered proprietor. And the next round was between her and Mr Beed’s descendants and I will write about that round next time.
A once famous series of court cases shows what could happen. In 1921 Walter Beed bought (and so became the registered proprietor) of a house in Military Road Mossman Walter allowed his niece Jessica Beed (then aged 55) and her companion Miss Arthur to live there and went to America where he died intestate in 1933. Miss Beed also died in 1941 leaving Miss Arthur in the house. Two other ladies came to live with Miss Arthur, Miss Arthur and one of the ladies died leaving the remaining lady Miss Spark living there until in 1968 she moved to Queensland and instructed her solicitor Mr. Currie to organise a tenant. Mr. Currie arranged an agent who let the house to Mr. McLeod. During the time the ladies lived in the house they renovated it, they paid rates (the rates notices being issued Walter Beed c/o and then the various ladies names.
Meanwhile the neighbouring land was owned by Hamilton Rentals Pty Ltd a company controlled by Mr. and Mrs. Chambers and leased to another of their companies (Whale Car Wash Ltd). Whale then also leased some other parcels of nearby land.
Early n 1969 Mr. Currie was contacted by a Mr. Nelson Meers, a solicitor and a partner of a firm now called Gadens. Mr. Meers later became Lord Mayor of Sydney under the Civic Reform banner. Mr. Meers said he was acting for Whale Car Wash and offered Mr. Currie $2000 for Ms Spark’s interest in the land. Mr. Meers was also a shareholder in Whale Car Wash Limited. (As an aside to comparative values in 1968 my parents sold their home in Denistone – a Sydney suburb near Eastwood for $8000.)
Mr. Currie took instructions from his client and told Mr. Meers that she was not interested.
Later in 1969 a Mr. Ingram visited Mr. McLeod the tenant of the property Ms Spark had possessed. Mr. Ingram asked Mr. McLeod about the property he rented and then tried to persuade him to move. Mr. Ingram said he wanted to live there himself as his aged mother lived nearby and he wanted to live close to her to help her. Mr. Ingram was very persuasive offering to pay Mr. McLeod’s moving expenses, half his rent for the next year and some legal fees –in fact he arranged for Mr McLeod to see a Mr Riley whom he said was a solicitor. He also prevented Mr. McLeod from speaking to Ms Spark’s agent until after Mr. McLeod had moved out. A little while later Mr. McLeod went back to the house he previously rented and was surprised to see a young family in residence. He asked one of them- Mrs. Knox what had happened and was told they knew nothing of Mr. Ingram and that they leased the house from Whale Car Wash. Mr. McLeod asked Mr. Billerwell the agent who had let him his new house for the phone no of Whale Car wash and was given 969 2790. He rang that number and was told by a Mr. Riley that the manager Mr. Emerson was out and would ring back. Mr. Emerson never did.
Meanwhile Mr. Billerwell found out that Mr. McLeod had started living at the new house before he had signed a lease. Mr. Billerwell was sure he had not given Mr. McLeod or Mr. Ingram a key before then and reported to the owner who investigated the matter. The owner found that a panel of glass in a verandah door had been cut and part of the panel removed. The panel was large enough to get a hand through and open the door. Mr White later gave evidence of a phone call with Mr. Chambers to the effect that Chambers said to him "We needed the house that McLeod occupied for the car wash and I am willing to pay the difference in rent between what you normally got for the premises and wheat the new tenant will be paying."
Ms Spark soon found out what had happened and formally served a notice to quit on Mr McLeod, because he was still legally her tenant. (She had never consented to the lease being transferred to new tenant. Transfers of leases might be the subject for another article).She then started an action to ‘eject’ the Knox family. A little while later Whale Car Wash was substituted as the defendant and the case became one between Ms Spark and Whale.
The judge found these facts
• Mr Ingram was a false name and the story he had about his aged mother was a lie both used to persaude Mr McLeod to leave the house he rented from Ms Spark
• Mr Rliey was not a solicitor but probably an employee or in some way associated with Whale Car Wash
• Mr and Mrs Knox were tenants of Whale Car Wash
• The locks had been changed to prevent Ms Sparks’ agent from re entering the house
• Whoever Mr Ingram really was , he was acting on behalf of Whale Car Wash
He then held that because “Mr Ingram” had gained possession through Mr McLeod and because “Mr Ingram” was the agent of the company , Whale Car Wash could not argue that Ms Spark was not the owner of the property.
He went on to say that “Mr Ingram” by a number of false representations, a false story and a wrongful course of action , had fraudulently induced Mr McLeod to give him possession of the property.” He continued saying that Mr Ingram was Whale’s agent and that Whale (And all those associated with it,) were a part of a conspiracy (he called it the wrongful conduct of the company) .
And now I come back to where I started this series. Our law respects ‘possession’. Ms Spark had lawful possession of the property. She could resist anyones claim other than that of the true owner (Mr Beed or those claiming through his estate) while she was living at the property. Mr McLeod had rented the property and so acknowledged Ms Spark’s possession and her rights to possess the property. “Wrongdoers” (to use the judge’s polite word to describe the company and those associated with it)were in no better position than Mr McLeod- Ms Spark’s prior possession was sufficient title against the company as a wrongdoer. ..to hold otherwise would alloe the company thought its agents wrongful conduct to take advantage of his wrongful acts”
So Ms Spark won, the company was forced out, had to pay her costs and Ms Spark regained possession of the house in Mossman. But she was still not the owner because she was not the registered proprietor. And the next round was between her and Mr Beed’s descendants and I will write about that round next time.
What does the Torrens system guarantee?
If you follow my newspaper column you will have seen me write about the Torrens system of land title a lot. It is an Australian system- exported to many places now- and quite different to the traditional systems. And it works a lot better, for example buying and selling land is much cheaper in Australia than in the USA where there is no Torrens system.
And I’ve written before about its core principles-
• The government guarantee (which is financed by a small part of the fee paid each time a document (be it transfer, mortgage, lease or what have you) is registered which protects people against losing their land by an abuse of the system. You may remember I wrote about Mr. Pritney who lost one of his blocks of land when someone fraudulently mortgaged it, collected the money from the mortgagee and disappeared.
• The register- the core of the system. The principle behind the Torrens system is that the register shows all the interests in the particular lot of land, who owns it, whether it’s mortgaged, if it’s leased, whether someone has an easement over part of it and so on.
But some people seem to think it does more than this.
I was surprised the other week when I saw another solicitor write that the Torrens system means that once a title is registered there can be no disputing boundaries, all that is needed is to look at the registered plan and work out the boundaries from that.
That might be so in most cases, but not all.
The first case where it is not so is boundaries change. Anyone who lives along the Hunter River knows this. A river boundary can change in two ways- suddenly- as happened when the river flooded in 1891 and cut through the “neck” of Horseshoe bend and a bit further downstream in the farming lands in East Maitland, and again in 1950 when it left the old Largs Bridge at Pitnacree bridging an empty gully. Generally the law doesn’t recognise these changes as changing boundaries- so there are some farmers with small pockets of land on the north bank of the river while their main land is on the south side. I don’t think they are of much use to them. But a river can also change slowly, so slowly that no one is really aware of them. And the law does recognise these change so that a block near Narrowgut which was surveyed as 25 acres when it was originally subdivided has become quite a lot larger because the river has slowly, very slowly indeed changed course since 1993.t his can be seem from the maps that accompany the Maitland Town Plan. These show the north bank of the river as ‘cutting into’ the land. These days the land has a ‘beach’ perhaps 10-15 metres long where the river used to be.
There is no way the Torrens system can guarantee that –you can’t prevent natural changes.
The second case is that surveys are now more accurate than they used to be. This is true for several reasons- not just better technology. There are now a series of recognised objects – state survey markers (which are often small brass discs in curb- there is one about 5 yards from my office in Church St), pegs left by other surveyors or prominent points that can be easily identified (such as the top of the spire of St Mary’s Anglicans Church in Maitland) that allow surveyors to better map their surveys.
In the past few of these objects were there. So a lot of the time surveyors had to work from what people took to be the boundaries- old buildings, long established fence lines, and so on.
And that again is something the Torrens system can’t avoid. A fairly recent case involving land in Clarencetown shows this. Mr. and Mrs. Boyton owned a block of land that had been sold by the government as late as 1976. It had always been Torrens title (all land sold by the state government for the first time has been Torrens title since the 1860s) their land adjoined Mr. and Mrs. Clancy’s land which was old system. The Clancys lodged a primary application to convert their title to Torrens. You have to lodge a survey with a primary application. The survey Mr. and Mrs Clancy lodged showed the boundary in the position of a long established fence line. The owner of the Torrens lot (that alienated in 1976) claimed the fence line intruded into his boundary and complained that this boundary gave them less land. They measured their block from where the crown plan which laid out Clarencetown said the street was-although the actual formed street didn’t coincide with that boundary (like most streets there was a verge between the formed road and the boundary. The court held surveying is not an exact science and there is no principle of law conferring indefeasibility of boundaries depicted in a deposited plan as distinct from indefeasibility of title conferred under the Real Property Act. It ruled that the fence line was the true boundary. It also said that in all likelihood the boundary of the Boyton's land was not where the crown plan (which was very old and for which there were no permanent surveying marks to plot the boundaries)said it was but a little to the north-which would then give Mr. and Mrs. Boyton enough land.
The real answer is that the Torrens system protects titles not boundaries.
And I’ve written before about its core principles-
• The government guarantee (which is financed by a small part of the fee paid each time a document (be it transfer, mortgage, lease or what have you) is registered which protects people against losing their land by an abuse of the system. You may remember I wrote about Mr. Pritney who lost one of his blocks of land when someone fraudulently mortgaged it, collected the money from the mortgagee and disappeared.
• The register- the core of the system. The principle behind the Torrens system is that the register shows all the interests in the particular lot of land, who owns it, whether it’s mortgaged, if it’s leased, whether someone has an easement over part of it and so on.
But some people seem to think it does more than this.
I was surprised the other week when I saw another solicitor write that the Torrens system means that once a title is registered there can be no disputing boundaries, all that is needed is to look at the registered plan and work out the boundaries from that.
That might be so in most cases, but not all.
The first case where it is not so is boundaries change. Anyone who lives along the Hunter River knows this. A river boundary can change in two ways- suddenly- as happened when the river flooded in 1891 and cut through the “neck” of Horseshoe bend and a bit further downstream in the farming lands in East Maitland, and again in 1950 when it left the old Largs Bridge at Pitnacree bridging an empty gully. Generally the law doesn’t recognise these changes as changing boundaries- so there are some farmers with small pockets of land on the north bank of the river while their main land is on the south side. I don’t think they are of much use to them. But a river can also change slowly, so slowly that no one is really aware of them. And the law does recognise these change so that a block near Narrowgut which was surveyed as 25 acres when it was originally subdivided has become quite a lot larger because the river has slowly, very slowly indeed changed course since 1993.t his can be seem from the maps that accompany the Maitland Town Plan. These show the north bank of the river as ‘cutting into’ the land. These days the land has a ‘beach’ perhaps 10-15 metres long where the river used to be.
There is no way the Torrens system can guarantee that –you can’t prevent natural changes.
The second case is that surveys are now more accurate than they used to be. This is true for several reasons- not just better technology. There are now a series of recognised objects – state survey markers (which are often small brass discs in curb- there is one about 5 yards from my office in Church St), pegs left by other surveyors or prominent points that can be easily identified (such as the top of the spire of St Mary’s Anglicans Church in Maitland) that allow surveyors to better map their surveys.
In the past few of these objects were there. So a lot of the time surveyors had to work from what people took to be the boundaries- old buildings, long established fence lines, and so on.
And that again is something the Torrens system can’t avoid. A fairly recent case involving land in Clarencetown shows this. Mr. and Mrs. Boyton owned a block of land that had been sold by the government as late as 1976. It had always been Torrens title (all land sold by the state government for the first time has been Torrens title since the 1860s) their land adjoined Mr. and Mrs. Clancy’s land which was old system. The Clancys lodged a primary application to convert their title to Torrens. You have to lodge a survey with a primary application. The survey Mr. and Mrs Clancy lodged showed the boundary in the position of a long established fence line. The owner of the Torrens lot (that alienated in 1976) claimed the fence line intruded into his boundary and complained that this boundary gave them less land. They measured their block from where the crown plan which laid out Clarencetown said the street was-although the actual formed street didn’t coincide with that boundary (like most streets there was a verge between the formed road and the boundary. The court held surveying is not an exact science and there is no principle of law conferring indefeasibility of boundaries depicted in a deposited plan as distinct from indefeasibility of title conferred under the Real Property Act. It ruled that the fence line was the true boundary. It also said that in all likelihood the boundary of the Boyton's land was not where the crown plan (which was very old and for which there were no permanent surveying marks to plot the boundaries)said it was but a little to the north-which would then give Mr. and Mrs. Boyton enough land.
The real answer is that the Torrens system protects titles not boundaries.
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