Deeds Registration System

DEEDS REGISTRATION SYSTEM


10.1   Introduction


In this chapter, we examine the nature and operation of the systems of land registration set up in Australia prior to the Torrens system, known generally as Deeds Registration Systems (DRS). Every state introduced a DRS; however, in some states, it has been eradicated because the aim is to eventually bring all old title land under the Torrens system of land registration. In most states, old title land is rare—most of it having already been transferred to the Torrens system. This process is complete in Queensland so there is no need for a DRS. In Victoria, the DRS still exists; however, with the introduction of the Transfer of Land (Single Register) Act 1998 (Vic), it is no longer possible to register deeds or documents under the DRS: s 22. If a person wishes to register a document or deed under the DRS in Victoria, it is necessary for the land to be brought under the application of the Torrens system. Section 9(2) of the Transfer of Land (Single Register) Act 1998 (Vic) gives the Registrar General the power to bring land under the operation of the Transfer of Land Act 1958 (Vic). The DRS still exists in Victoria as a record of deeds over old title land. However, for all practical purposes, it no longer has any use as a registration system, as the Torrens system provides a greater security to the registered title holder.


The conversion of all old title land to Torrens title land and the creation of a single system of registration is the ultimate goal for all Australian states and is near to being achieved in most states. Most land in Australia now comes under the application of the Torrens system and where it doesn’t, legislative developments like the Transfer of Land (Single Register) Act 1998 have provided further impetus for the move to a single registration system. The DRS operated as a precursor to the Torrens system, and it is important to appreciate its effect because it still applies to all land interests not within the scope of the Torrens system and capable of being registered under the DRS— as well as providing a useful historical perspective of the early registration process and the different approaches assumed with the introduction of the Torrens system. The DRS was introduced with the specific aim of setting up a system for organising, structuring and prioritising interests in land through the implementation of a general register, prioritising registered interests according to their date of registration. Being the first system of land registration to be introduced, it pioneered the concept of ‘registered’ and ‘unregistered’ interests.


The DRS altered the traditional general law priority principles because it set out that priority depends upon the date when an interest is registered, not the jurisdictional character of that interest. In this respect, the DRS superimposed the statutory registration principles upon pre-existing common law and equitable principles (discussed in Chapter 9). The primary objective of the DRS was to introduce a system which provided a register where all interests affecting land—and executed by way of an instrument— could be noted. It was felt that such a register would enable subsequent purchasers of the land to search for interests relating to that land at a central location and, whilst registration is not compulsory, the priority conferred upon registered instruments provided an added incentive to contribute to the register.


Unfortunately, because the system retained the general law notion of a bona fide purchaser without notice, in reality the DRS did very little to amend the uncertainties associated with general law priority principles. One of the major problems with general law rules was that it was never absolutely clear whether a purchaser took a title free from defects and, in many situations, whether the doctrine of constructive notice applied. Whilst security measures could be taken in the form of specific covenants or extended searches back to the good root of title, nothing was ever guaranteed. Whilst the DRS attempted to alleviate these difficulties, its downfall was that it did not provide a direct guarantee of security. The best that can be said of the DRS is that, at the time, it introduced a much needed edifice for the categorisation of land interests. Beyond this, it never fully achieved its purported aims in establishing a greater and more absolute sense of security to purchasers of old title land.


10.2   History of the DRS


As the variety and type of interests in land expanded, it became increasingly important to provide a more structured method for recording such interests and notifying the general public of the true character of a particular piece of land. The methods which had evolved for conveying an interest in land were, essentially, private and secret in nature, making it difficult for future parties dealing with the land to discover the range of interests relating to land and their sphere of enforceability. Furthermore, the method of conveying by deed of release was unstructured and capable of being abused by fraud or forgeries and there was often very little indication of such defects in the title. In light of these problems, it was felt that a more systematic method of recording and structuring land conveyances and land interests should be created and that the most appropriate method of achieving this was through the introduction of specific statutory provisions.


Until the 19th century, many efforts to set up a general system of registration throughout England were unsuccessful. In 1825, New South Wales adopted a system known as the ‘Deeds Registration System’ pursuant to a Deeds Registration Act 1825. A similar system was adopted in Victoria, Queensland and Tasmania.1


The DRS was set up as a system for the registration of all deeds and instruments affecting land; registration under this system was not compulsory. As set out under s 6 of the Property Law Act 1958 (Vic):


All deeds conveyances and other instruments in writing (except leases for less than three years) of or relating to or in any manner affecting any lands tenements or hereditaments situated lying and being in Victoria may be entered and registered in the office of the Registrar General in the manner hereinafter directed; and all such deeds conveyances and other instruments in writing as aforesaid, if made and executed bona fide and for a valuable consideration and registered in conformity with the provisions of this Act, shall have and be allowed priority over every other deed conveyance or other instrument in writing…


The instruments capable of being registered under the DRS did not have to be registered. However, if they were registered, they immediately gained priority over other instruments which were registered at a later date or which remained unregistered (subject to specific exceptions noted below).


The DRS is, therefore, a system whereby an interest or estate which is expressly created pursuant to an instrument is capable of being registered and gaining priority if the interest or estate holder desires. It is not necessary that the instrument actually notes a specific transaction; the instrument may effect a conveyance or it may simply note an interest. Importantly, registration under this system does not create the interest or alter the instrument in any way, but rather, provides notification of the effect of the instrument and confers priority upon the holder against other, specified holders.


The DRS only deals with expressly created interests which are either noted or created by way of a deed or pursuant to some other form of writing. Interests which do not require or depend upon written verification in order to exist are not capable of being registered under the system because there is no tangible reality to record, and therefore they are outside the scope of the system. Furthermore, the priority that the system accords can only apply to interests which are capable of being registered, which are bona fide and which, for whatever reason, are registered prior to the conflicting interest. This qualification to the application of priority principles is a severe impediment upon the general ability of the register to secure good title upon registration.


The DRS was introduced prior to the Torrens system. The statutory provisions applicable to the DRS only apply to instruments not coming within the scope of the registration system introduced by the Transfer of Land Act 1958 (Vic). This is clearly set out in s 4 of the Property Law Act, which expressly notes that no instrument affecting land, of which any person is registered as proprietor under the Transfer of Land Act 1958 (Vic), shall be registered under this Part.


10.3   Statutory operation of the DRS


10.3.1   Structure of the DRS


All of the statutory provisions relevant to the Victorian DRS are found in Part 1 of the Property Law Act 1958 (Vic). Part 1 of the legislation sets up a system of registration in the following manner. This chapter outlines the process and consequences of registration with reference to the Victorian legislation—a process which is similar in most states. It must be borne in mind, however, that following the introduction of the Transfer of Land (Single Register) Act 1998 (Vic), it is no longer possible to register a new dealing over old title land under the DRS without bringing that land under the Torrens system and thereby making Torrens system registration an imperative. Hence, the following references to registration under the Victorian legislation are intended purely as an historical illustration of the registration process as it used to apply in Victoria and as it still does apply in most other states:



(a)   Section 7 of the Victorian statutory system requires the Registrar General to maintain a General Register of Deeds, which is open to the public to inspect. In order to register an instrument in the register, the instrument must be in writing, with the date clearly set out, the nature of the transaction, the consideration paid, and the names of all the parties involved. The original instrument and a sworn copy (memorial) must be deposited with the office of the Registrar General. Once received, the original copy will be allocated a reference number. Instruments are registered according to the order in which the references are allocated to them. The registration copy of the instrument is retained by the Registrar General and becomes part of the Register itself.


(b)   Once the instrument is registered, it gains priority over all unregistered but registrable instruments and all later registered instruments relating to the land in issue and in conflict with the registered interest. According to s 6 of the Victorian system, priority can only be conferred where it is established that the instrument has been acquired bona fides