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.