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6_06-06-13Torrens_Title_Notes_-_for_exam - Torrens Title...

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Torrens Title Notes 3 principles : Mirror Principle – nothing not in the picture is on the register. The register reflects ALL interests in the land. Curtain Principle – the curtain falls after each registration, and you don’t look behind the curtain (it’s made of lead). Only look at the mirror. Insurance Principle – compensates people who suffer lose through the Torrens Title system, the Torrens Title assurance fund. The register is guaranteed by the State. Its foundation is s 31 B Real Property Act (1900) NSW. It is now a computerised system, with a single folio for each lot showing search dates, about the land, where it is, who is the registered proprietor. The “Second Schedule” will give you details about incumbrances over it (easements, mortgages, etc). The duplicate is the Certificate of Title, which is evidence of ownership of the property. What can go on the register : According to s 7 Real Property Act you can put a transfer, including easements, leases and subleases, and mortgages. They must be in “registerable form”, namely approved legal forms, not home made ones. Indefeasibility : Barwick J in Frazer v Walker – An immunity from attack by adverse claims to land or an interest in respect of which he is registered, which a registered proprietor enjoys. S 41 Real Property Act : No dealing operates until it is registered, and nothing passes without registration. Barwick J in Breskevar v Wall – It is a title by registration, not registration of a title. The Certificate of Title describes what registration itself has vested in the proprietor, so a forgery will pass good title. S 42 Real Property Act : The PARAMOUNCY PROVISION , that the registered proprietor holds the land subject to interests noted on the folio/register, no others. If the registered proprietor is not guilty of fraud, they are not affected by circumstances their predecessor may be. S 43 Real Property Act : The notice of existence of a trust etc are not in itself FRAUD, for the sake of the Act. Points on ss 41-3 Real Property Act : They confer immediate indefeasibility, so as soon as it is registered, it is done, regardless whether the person you bought from defrauded the interest, or if there is a
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void transfer by which you got the title. By immediate indefeasibility people will be defrauded of their interests and lose, which is not cool. Otherwise, there is deferred indefeasibility, where if it is a void instrument, it is deferred until someone acts on the face of it. By deferred, all titles are threatened and convey an obligation to investigate the title (like in Old System).
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