Throughout history, there have been many land tenure systems that influenced land ownership in Australia and New Zealand. But today, the Torrens system is the dominant registration system for most land holdings, replacing Old Law.
Before anything else, it’s important to have a historical perspective on how both land holding systems came to be, to justify why the Torrens system replaced the Old Law. Both Old Law and the Torrens are land ownership systems introduced to Australia and New Zealand from Britain.
Introduced to Australia in March 1838, the Old Law or the General Law Land Tenure System is based on the principles that land was acquired through settlement and reason rather than conquest. On the other hand, the Torrens title system, introduced between 1857 to 1875, prioritises the land register, a central system or database that determines the entity that rightfully owns the parcel. The general community can rely on that information, and the purchaser need not look beyond that record.
The biggest difference between both land ownership systems is that the Old Law is expensive and time consuming to keep in operation while the Torrens system is simple and deemed infeasible by the general community.
Because property dealings under the Old Law were carried out by deeds, a transfer of land cannot be undertaken without the chain of title deeds. On the contrary, a Torrens title is a simple scheme that only involves a registration of title that does not require the purchaser to prove a chain of title. It eliminates time and effort, especially on the part of the conveyancing solicitor, as the purchaser no longer needs to track title through a series of documents.
Also, in the Old Law, it’s a lot more complicated to prove one’s ownership when the land is subdivided. In the Torrens system, the registrar will make the adjustments in the database. E-conveyancing is also increasing in popularity across Australia, and soon enough, it will harmonise all the Torrens systems across all states.
Today, Old Law is still in effect in roughly 3% of Australia’s lands. The Torrens system is the predominant system, while other systems are in place for unique land tenure concerns, such as dealings in native title lands. While Australia’s property law regulates all land tenure systems and other legal instruments that facilitate the commercial dealing of land, including lease, covenant, easement and mortgage.