A Basic Land Title History of NSW
A few notes on the legal framework of land title in New South Wales.
1788 and all that;
Governor Arthur Phillip was given letters patent from the crown to establish the colony of New South Wales. The proclamation of the foundation of the colony was read out on the 7th February 1788 and from that time, all English law became law in New South Wales. The English legal system consisted of Common Law, that is law made by decisions of the courts, over ridden by Legislation or Acts of Parliament. Under the letters the Governor was required to create three courts, a Vice Admiralty Court, a Court of Criminal Jurisdiction and a Court of Civil Jurisdiction.
The administration of the law in the colony was left in the hands of professional soldiers. David Collins was appointed the Judge Advocate (the chief legal officer). He was a Captain in the Royal Marines with no legal training. While I suspect there were several lawyers in the First Fleet, unfortunately, having been called to the bar they were now behind them.
From the time of the reading of the proclamation all land became crown land and the letters patient empowered the Governor to make grants. The first recorded grant was to James Ruse along with ten others who received grants signed by Governor Phillip on the 22nd February 1792, thus starting the great Australian land boom. Copies of these and all subsequent grants are held in the grant registers which cover the years 1792 to 1863. On the start of the Torrens Title system the grant registers ceased and all new grants were registered in the Torrens Register.
Administration of title in that period was minimal. The Governor didn't even have a royal seal and used his own signet ring on official documents. Private dealings with land were not the concern of the government other than to provide some form of registration. The situation was so bad that when Mr Rouse sold his farm around 1796 he simple signed the grant document and gave it to the buyer. (1)
It was not until Governor King arrived in 1800 that a register was formally established. It was kept by the judge Advocates Office at Sydney and in the Hawkesbury district, but these records were lost. A second attempt in 1802 saw the first index that has survived. Known as "The Register of Assignments and other legal Instruments", more commonly called "The old register" it consists of nine books and contains transactions from 1794 to 1824. This register had an index and a register in which appears a transcript of what was in the document.
1824 to 1864;
An extensive review of conditions in New South Wales was undertaken by Commissioner J T Bigge between 1819 and 1821. This resulted in a complete restructure of the colonies administration. The English Parliament passed the "New South Wales Act", numbered 4 Geo IV Chapter 96 on the 19th July 1823. This act provided for a new representative Legislative Council and a Supreme Court. The creation of our own Supreme Court could be said to mark the start of Australian Common Law. The administration of Title in New South Wales was also placed on a solid footing when the new Legislative Council enacted the "Registration of Deeds Act "1825 producing a stable registration system.
At first, this act was maintained by the Supreme Court and latter by the Registrar General.
The system required a registration copy of the instrument to be filed in the register. It was given a book and number and an entry was made in an index under the seller's name, this was commonly called the Vendors Index. In 1899 a Purchasers Index was created as well. Today both names can be searched electronically. Registration is not compulsory; however priority in any dispute before the court must go to the registered deed.
Torrens title was introduced into NSW on 1st January 1863 and is the current title system in NSW. All new grants were enrolled in the new system. Certificates of Title were issued of each parcel of land and all dealings with the land had to be registered. This allowed the state to guarantee the title.
The Two Title Systems in NSW.
Old System or Common Law Title
In 1788 title was determined by rules of Conveyancing set out under Common Law (2). These rules were built on the decisions made in the courts of Common Law in England. These decision or judgements were called precedents. Once made, that precedent could be relied on in any following case were the facts were the same or similar in nature to the first case. Legislation also affected titling such as the Statute of Uses 27 Hen. VIII, Chapter 10. An Act to regulate the sale of land by trustees. In time numerous Acts and Precednets came to create a the body of law known as the law of Real Property. It was known as real property because land is real. Unlike say the laws govening inheritance. The Common Law Conveyancing system is now more commonly called Old System.
The main features of Old System Title are:
- The title consisted of a collection of all the documents, registered or not that affected the land. Generally called the deeds they usually consisted of sale deeds (conveyances) and deeds that leant money (mortgages)
- This collection must go back far enough to "prove" the title, what is known as a "good root of title"(2)
- In the deed the seller promised the buyer that the seller, had
- a good right to convey,
- that the lands could be quietly enjoyed,
- that the title was free of encumbrances,
- and the seller undertook to execute any further assurances needed.
- They are commonly referred to as the four covenants(2) & (3)
- Solicitors (when they started to practice here) gave abstracts of the title (Lists of deeds) to the buyers solicitor, who then examined the original deeds in that list to see if there was a problem. If not, the money was paid and a new deed (of conveyance) was drawn up.
That is the Old System Title, a collection of deeds to prove title, no guarantee of title, no compulsory registration and no regulation of boundary descriptions. Old system can be converted to Torrens Title by the lodgement of a Primary Application. The application is fully investigated, and the title that issues is guaranteed by the State.
Today the state is undertaking a conversion project based on the last registered deed. These conversions are not fully investigated. The title that issues has a qualification in it as it cannot be guaranteed for a minimum of 12 years.
The Torrens Title System
Torrens Title is, I believe the most significant contribution to public administration, Australia has made.
The System was invented by Robert Torrens in South Australia in 1861. At its heart is a record of a parcel of land, certified correct by the Government and called a Certificate of Title. On the certificate is recorded any act that affects that land. Registration is compulsory and the land is identified by a survey. The certificate of title contains a land description and possibly a diagram of the land. The certificate has two schedules. The first schedule shows the owner or proprietor and the second, any dealings with the land such as mortgages or any rights of way etc that affected the title.
Registration and survey were compulsory. This reduced the risk of a defect in the title to virtually zero and with a state guarantee of title this immediately reduce the cost of convincing.