Property Law 2 Notes

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Indefeasibility
* The conclusiveness of the register & bars 'retrospective investigation of title' aimed to achieve security and simplicity in matters of title to land * Protection of purchaser – they are ‘paramount from unregistered interests’ but still are bound by registered interests * Frazer v Walker – ‘indefeasibility of title is convenient description for the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys’ Real Property Act 1900

Indefeasibility| Statute| s 42 (1) – Key indefeasibility provisionThe registered proprietor’s title is not to be postponed against anyone (they are paramount from unregistered interests) * Paramount from unregistered interests * Subject to exceptions – i.e. previously registered interest in his land and frauds 40 (1) – Manual folio shall be conclusive that the person named in the folio as the registered proprietor is the registered proprietor of that estate or interest (evidence of title) * Not a major source of indefeasibility, but is designed to assist in relation to the proof of title * Should be read subject to the key indefeasibility section (s42)s 45 –Extension of protection: for registered proprietor who is a bona fide purchaser for value * this Act cannot be interpreted as to leave them open to a court action for recovery of damages or for ejectment or for the possession or recovery of land, on the ground that vendor may have been registered through fraud or error| | Case law| * Immediate indefeasibility: prevails in NSW: Frazer v Walker [1967] * Affirmed in Breskvar v Wall (1971) * Torrens system is ‘not a system of registration of title but a system of title by registration’ * An indefeasible title can be acquired by virtue of a void transaction or instrument (not confined to forgery) * Exceptions: in situations as outlined in Gibbs v Messer [1891] – a fictitious person cannot by registration of a forged deed acquire a valid title – the mortgage attached to the title, although registered in good faith, is also defeated * Asset Co Ltd v Mere Roihi - narrowly defined Gibbs and confined it to its own facts * Garofano v Eliance Finance Corp - Gibbs is only good law where the forgery is in the name of a fictitious person ( fake/made up person) * Volunteer registered proprietors are also protected under the indefeasibility section in NSW (Bogdanovic v Koteff)| Notice| Statute| s 43 (1) - Except in the case of fraud no person dealing with the registered proprietor shall be affected by notice (actual or constructive) of any trust or unregistered interest * i.e. ‘the knowledge that any trust or unregistered interest is in existence shall not of itself be imputed as fraud’ * protect from equitable fraud (constructive notice - if one does not know but ought to have known) which was not protected in old system land| | Case law| * Purpose: (Templeton v Leviathan (1921)) * To prevent certain equitable principles applying to registered land * Narrow accordingly the definition of ‘fraud’ | | s 56 C| Mortgagee must confirm identity of mortgagor: before presenting a mortgage for lodgement, the mortgagee must take reasonable steps to ensure that the person who executed the mortgage as mortgagor is the same person who is, or is to become, the registered proprietor of the land * Cancellation of recordings in the Register if mortgagee committed fraud, failed to comply with this section or had actual or constructive notice of the fact that the mortgagor is not the same person as the soon-to-be RP. (subsection 6) – discretion of Registrar-General * Commences 1/11/11 – assumes it has commenced * The regulation on the procedure is not onerous (no face to face) – easy for forgery | | | |

Immediate vs. Deferred indefeasibility (Policy)
| Immediate indefeasibility| Deferred...
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