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Assessment 2 Contemporary Issue
Property Law (LAW 2112)
Monash University
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CONTEMPORARY ISSUE IN PROPERTY LAW
- In reaction to Mabo [No. 2], the Native Title Act 1993 (Cth) (NTA) was passed, and Australian common law now acknowledges Native Title. 1 The phrase "native title," according to Mabo [No. 2], "conveniently reflects the interests and rights of
1 Mabo v Queensland (No 2) (1992) 175 CLR 1.
indigenous residents in land, whether communal, group, or individual, acquired under the traditional laws recognised by and the traditional practises observed by indigenous peoples." 2
Native title occurs under Mabo [No 2], when indigenous owners can prove a continuous relationship to the land (before colonialism) by customary traditions, and the title has not been extinguished or amended afterwards, such as when the Crown grants it to someone else. 3 The land was held on a tenure basis after the Crown made a land grant, and the Crown assumed complete beneficial ownership of the land. 4 Lands that are not subject to grants, on the other hand, are not subject to the theory of tenure, and native title rights may still exist. 5
Extinguishment of native title happens when a government deals with land in a way that is incompatible with the ongoing exercise of native title, as defined by the NTA and Australian common law. 6 Extinguishment of native title can be described in two ways:
(a) For starters, it validates the Commonwealth's partial or total extinguishment of native title through actions such as prior exclusive possession acts ("PEPAs") or previous non-exclusive possession acts ("PNEPAs"). 7 Acts that were validated under the NTA as well as those that were legitimate at the time, they were carried out are included. 8 (b) The NTA also addresses extinguishment by recognising acts that were previously invalid due to the presence of native title. Past actions and intermediate period acts are the terms used to describe these performances. 9
2 Law Explorer, "Native Title Chapter 6."
3 Native Title Act 1993 (Cth)
4 Garth Nettheim, " Mabo/Brennan On The Doctrine Of Tenures, 1992 ",
<mabonativetitle/info/brennanDoctrineTenures.htm>.
5 Dr Ulla Secher, "The Doctrine Of Tenure In Australia Post-Mabo: Replacing The ‘Feudal Fiction’ With The ‘Mere Radical Title Fiction’" Part 2 Australian Property Law Journal.
6 Native Title Act 1993, s23C
7 Ibids s 23B.
8 Ibid s 23F.
9 Ibid s 14.
- Acts from the intermediate period are categorised similarly to earlier acts, with the exception that pastoral or agricultural leases are classified in category B rather than A since they do not completely extinguish native title. 16
Future acts
- Section 233 of the NTA provides that, an act is essentially a future act in relation to land or waters if that act affects native title and is: 17
(a) a legislative act which occurs after 30 June 1993 or any other act which occurs after 31 December 1993. (b) an act that is not a past act'; and (c) an act which is, apart from the NTA, invalid because of the existence of native title or which validly affects native title. 18
QUESTION 2- Registration of Torrens title
- The Torrens system was established to provide registered interest holders with a higher level of security in terms of title security. This was later formalised in the Transfer of Land Act 1958 in Victoria. 19
16 Ibid.
17 Ibid.
18 MARK GERITZ and TOSIN ARO, National Native Title Tribunal (The Tribunal, 6th ed, 2012).
19 Transfer of Lands Act 1958 (VIC)
- When a Torrens title is recorded, each piece of land is given its own folio. This folio describes the land as well as the interests of the owner. 20 The majority of the folios are now stored on computers. A duplicate of the certificate of title is held with the Registrar-General. A folio number is issued to each copy of the certificate of title. The folio lists registered land interests as well as caveats. The interests are recognised as legal interests once they are registered under the Torrens system. 21
The title of Torrens is based on three principles:
i. The mirror principle: the current ownership and interests in a person's land are precisely and completely reflected in the land titles Register. 22 ii. ii. The curtain principle: because the land titles Register holds all of the data about a person's land, title and other interests therefore does not need proof of lengthy, complicated documents like title deeds; and iii. The indemnity principle: The Government guarantee compensates a person who loses land or a registered interest. 23
Consequence of registration
- The titleholder will gain indefeasible title after registration is completed. 24 This implies that the registered titleholder now has a secure title that is only subject to other registered title interests. The paramountcy provision under § 42 in Victoria recognises this idea. 25
20 Robert T. J Stein and Margaret A Stone, Torrens Title (Butterworths, 1991).
21Victorian State Government, Torrens titles (9 June 2020) Property and Land Titles <propertyandlandtitles.vic.gov/land-titles/torrens-titles>
22 Ibid.
23 Ibid.
24 Transfer of Land Act 1958 (Vic) s 42
25 Ibid.
The volunteer exception states as volunteers do not provide consideration for title; registration does not attract the benefits of indefeasibility. This rationale for this exception is that as volunteers are subject to the equities of their predecessor, thus indefeasibility would be ‘illusory.’ 32 Additionally, there is no indication that ss 43 and 42(2) 33 confer indefeasibility benefits onto volunteers.
iv. Inconsistent legislation
This exception provides that in circumstance of inconsistent legislation, subsequent legislation will abrogate prior legislation. However, statutory interpretation is important as this exception is limited to only ‘true inconsistency’. 34
v. Prior title/Erroneous description of land
The prior title exception under s 42(1)(a) provides protection to a prior registered title holder against subsequent interest claims. 35 This was established in National Trustees Co v Has set. 36 The erroneous description exemption in section 42(1)(b) provides that where any portion of the land is included under the folio by erroneous description, title is defeasible. A bona genuine purchaser will be exempt from this clause since they should not be penalised for making a mistake. 37
vi. Paramount interest
Crown grants, adverse possession, rights of way, easements, leaseholder rights, and unpaid land tax or rates are among the exceptions to the norm of indefeasibility listed non-Section 42(2). 38
32 Frazer v Walker [1967]
33 Transfer of Land Act 1958 (Vic) s 42 (2), s 43
34 Rasmussen v Rasmussen [1995] 1 VR 613.
35 Transfer of Land Act 1958 (Vic) s 42(1)(a)
36 National Trustees Co v Hasset [1907] VLR 404.
37 Transfer of Lands Act 1958 (Vic) 42(2)
Question 3
Background
i. Mr. Black signs a deal with Mr. Brown to sell his home. ii. Mr Brown makes a deposit and determines the terms of settlement. iii. Mr Brown obtains a mortgage advance from the bank upon depositing title papers prior to settlement. iv. Mr Brown refuses to pay and walks away with the mortgage advance. v. Mr Black then enters into a deal with Mr Green to sell the property. vi. Mr Green and the bank are now in a dispute regarding priority interest of the property
- In this case, there’s no evidence to suggest the title was registered in the name of Mr. Brown by the time he deposited it with the bank in exchange for mortgage advance. This means Mr. Black remained the proprietor of the registered title. To this extent, we can only assume, the bank received documents that were infected by fraud.
38 Ibid
BIBLIOGRAPHY
A Journal Articles/Books
GERITZ, MARK and TOSIN ARO, National Native Title Tribunal (The Tribunal, 6th ed, 2012) Law Explorer, "Native Title Chapter 6"
Secher, Dr Ulla, "The Doctrine Of Tenure In Australia Post-Mabo: Replacing The ‘Feudal Fiction’ With The ‘Mere Radical Title Fiction’" Part 2 Australian Property Law Journal Stein, Robert T. J and Margaret A Stone, Torrens Title (Butterworths, 1991)
B Cases Bahr v Nicolay (No 2) (1988) 164 CLR 604. Frazer v Walker (1967) 1 AC 569 Mabo v Queensland (No 1) (1988) 166 CLR 186 Mabo v Queensland (No 2) (1992) 175 CLR 1
National Trustees Co v Hasset [1907] VLR 404. Rasmussen v Rasmussen [1995]1 VR 613. Rice v Rice (1854) 2 Drew 73; 61 ER 646.
C Legislation
Native Title Act 1993 (Cth) Transfer of Lands Act 1958 (VIC)
D Other
"About Types Of Land In Victoria", Land (Webpage, 2021) <land.vic.gov/land- registration/for-individuals/about-types-of-land-in-victoria>
Nettheim, Garth, "Mabo/Brennan On The Doctrine Of Tenures, 1992", Mabonativetitle (Webpage, 1992) <mabonativetitle/info/brennanDoctrineTenures.htm>
Assessment 2 Contemporary Issue
Course: Property Law (LAW 2112)
University: Monash University
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