Possessory Interests In Australia

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Does the introduction of a system of registration of title remove the need for the law to recognise possessory or equitable interests in land? Why? Why not? I INTRODUCTION The need for the law to recognise possessory and equitable interests in land under a system of registration of title is a contested issue in Australia. The term ‘title’ means the extent of ownership over property as recognised by the legal system. For the purpose of this essay, a system of registration of title means the Torrens title system. The protection of possessory and equitable interests in Western Australia will be discussed, with reference to the Torrens title system and real property. It will be argued that there is still a need for the law to recognise equitable interests in land, however, the Torrens framework does remove the need for the law for the law to recognise possessory interests, in particular the doctrine of adverse possession. II CONTEXT In Australia, there are two systems for registration of interests in land; the general law and Torrens systems. Today, the Torrens system is used in every Australian jurisdiction, being introduced in Western Australia on 1 July 1875. A What possessory/equitable rights existed prior to Torrens? At the commencement of European settlement, Australia inherited the system of land law that existed in England. Before the introduction of Torrens in 1875, a system of registration of deeds was in place in Western Australia. This is a system under which instruments relating to property transactions are recorded on a central register. In Western Australia, priority is decided according to the date of registration, and there is no stipulation concerning the bona fides or valuable consideration given by the... ... middle of paper ... ...able Priorities and the Failure to Caveat’ (1989) 6 Auckland University Law Review 199 Robinson, Stanley, Transfer of Land in Victoria (1979) MacCallum, Susan, ‘Uniformity of Torrens Legislation’ (1993) 1 Australian Property Law Journal 135 Tooher, Joycey, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 Australian Property Law Journal 117 B Cases Jacobs v Platt Nominees Pty Ltd [1990] VR 146 Pilcher v Rawlings (1872) Rice v Rice Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch D 482 Bahr v Nicolay (1998) 164 CLR 604 Gunns Ltd v Balani Pty Ltd [2011] FCA 431 Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2001] WASC 87 C Legislation Property Law Act 1969 (WA) Registration of Deeds Act 1856 (WA) Transfer of Land Act 1893 (WA) Dividing Fences Act Limitation Act D Other

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