A NEW LAW

Hokitika Guardian, 18 March 1925, Page 1

A NEW LAW

the: land transfer (compulsory) REGISTRATION OP Titles act.-

On the first of next month, one ol the most important Acts ever passed by the New Zealand Legislature will come into operation. 'This is “The hand Transfer (Compulsory) Registration of Titles Act, 1024.” In 1022, Lord Mirkenhead. then Lord Chancellor, was successful in getting the Imperial Parliament to pass "The Law of Property Act. 1022.” Lord Birkenhead’s intention was to simplify the law of real property in England. This necessitated the abolition of the old feudal tenures, which have tainted the theory of English law ever since the days of William the f’oiifiiteror. Many of the reforms, however, effected by Lord Birkenhead’s Act were anticipated hy the framers of "The New Zealand Conveyancing Ordinance 1812,” which abolished certain rules of the English Common Law. and generally simplified conveyancing, as it was then practised in England. Ille work of simplifying the law of real property in New Zealand was considerably advanced in 1870 by the passing of the Land Transfer Act, which introduced into New Zealand conveyancing, what is generally known as the Torrens system. It is so called, because it was first brought into operation in South Australia liv Sir ltuhcrt Torrens, ft is amusing now to recollect that “ the introducing of the Torrens system into South Australia was strongly opposed by lawyers of every class, from solicitors to judges.” One judge- went so far as to declare that the Torrens Act was a scandal “ on the legislation of the colony.” But time has shown that Torrens was right, and the lawyers of his day too conservative and cautious, for the Torrens system has now been adopted in some form or other in most parts of the British Empire. Our “ Land Transfer Act, 1870.” and the subsequent Acts passed in substitution .have been the means ol simplifying dealings with eighty per cent of the freehold lands in New Zealand. But as the remaining twenty per cent of the freehold lands are not yet subject to the Land Transfer Act, hut are held under the old deeds registration system, the simplifying lias not been completely consummated. If the present system of dealing with freehold lands not yet held under the Torrens system, was not simplified. New Zealand in the matter of real property reform would lag lamentably behind England. It has been considered advisable, instead of bringing into operation in New Zealand, Lord Birkenhead's Act, which lias been designed primarily for England, where the methods of land tenure are so dili'orent from our own, to make all the freehold lands in New Zealand subject to “The Land Transfer Act.” This can he accomplished only by compulsorily bringing all the "old system” lands under

“The Land Transfer Act,” and so abolishing the present antiquated, cumbersome, cosllv and unsatisfactory deeds registration system. Under the new Act, which comes into operation on the first day ol April next, every District Land Registrar must proceed with all convenient speed to bring under “ The Land Transfer Act” all private freehold European land in his district, which lias not alivadv become subject to that Act, so that all such land shall ho brought under (lie principal Act within five years or as soon thereafter as may he. This will involve an official examination of all old sy-lein titles; every instrument which has been registered against a parcel ol land since the original Crown Grant must he <arofnllv searched by an officer ol the Land Transfer Dopnrlment known as the Examiner of ■ Titles. Alter searching the title the Examiner makes a report to Llie District Land Registrar, who ultimately issues the certificate el title, and assumes the responsibility lor it. In the smaller province. such as Westland, the Examiner ol 'lilies is also the District Land Registrar. Wiih few exceptions, all Examiners of Titles and District Land Registrars are solicitors, and some are barristers.

To understand dearly the \viiloreaching and beneficial oflect I >l the new Act, it. is necessary t<> examine the essential ilill'erenees between ilie |,and Transfer nr Torrens title anil the old deeds registration system, which is to ho gradually superseded. Under the deeds rogislrnlinn system it, is the instruments constituting the title which are registered, hut such instruments .when registered are not necessarily valid, the title ol a pvuehaser being subject to any delects which exist in the title ol his piedecessors in title; under ‘‘The Land Transfer Act,” on the other hand, it is the title itself which is registered and State-guaranteed, and a person who is registered as owner, gets an indefeasible title, good against all the world, except in (In' case ■of fraud. F.verv dealing with old system hind involves a laborious searching ol evei\ instrument registered against the particular parcel of laud: a person dealing with Land Transfer land, however, has not ti) go behind the Register, nor make inquiries as to previous owneisliip ; lie takes the Register as he finds it. “In deed registration systems, as a rule, any instrument preferred for registration’ is accepted without any enquiry as to its contents and effect, and the fact of registration carries with it no implication of title prior to registration.’” Hut under The Land Transfer Act instruments are not accepted for registration unless they are in order. .Moreover it costs more to deal with old system land than Land Transfer land. Thus the solicitors fee for preparing an old system convey,nice (exclusive of disbursements) is three guineas, where the consideration exceeds toO. hut does not exceed tl»0; for a similar transfer under the Lorrens svstem the foe is only 2 guineas, u Will thus ho seen that the new Act will he the means of lessening the legal costs incurred in dealing with land. The two cardinal features of the Torrens system are simplicity and security of titles. Under the new Act. it will not he possible to give an absolute title, unless the adjoining land has been recently surveyed. This is because the legal boundaries of “olil system ” land are the long established possessory boundaries, which are not necessarily the title deed boundaries. The Act, there-

fore, directs the issue of titles “limited as to parcels,” such certificates will he fully guaranteed as to the title or ownership, hut not as to the position, area or boundaries of the land, until they have been established by a re-survey. If on the examination of an “old system” title, any serious defects are discovered, a certificate limited as to title will he issued ; the defects will not he expressed on the certificate, hut will he set out in the Registrar’s minutes, which, must not he searched except with the consent of the owner. After the expiration of 12 years all defects as to title will automatically become extinguished.

The rights of persons, who are in possession of old system land adverse to that of the documentary owner, are expressly protected. Their position is not prejudiced hy the compulsorily bringing of the land under the Act in the name of the documentary owner. It is advisable, however, for persons in adverse possession of land, to notify the Registrar of their claims. If they have acquired a good statutory title, they should instruct a solicitor or land broker either to make an application under the principal Act for an ordinary certificate of title, or Lo register a caveat under the new Act. Generally speaking a good statutory title may he obtained to "old system” land by twenty years’ continuous possession adverse to the documentary owner, unless the documetary owner is under a legal disability (e.g. of infancy, lunacy or absence beyond the seas) in which case forty years’adverse possession may he necessary. It is well known to the District Land Registrar that there are many parcels of land in Westland, especially in Hokitika, held under adverse possession; and in the majority of eases a good statutory title has probably bee’ll acquired hy long possession.

The proportion of freehold land in the Westland Land Registration District not already under the Land Transfer Act is approximately fifteen per cent. 'The District Land Registrar for Westland (Mr E. (’. Adams) anticipates that this will lie brought under the Act in less than two years. For the purposes merely ol office convenience, the land in the various localities of this district will ho dealt within the following order:— (1) Town of Hokitika. (2) Town if Grcymouth. (3) Rural sections situate in the original land registration district of Westland. - I) Sections formerly' in the Nelson district hut now situate in this District (including the Town of Cohden). (5) Town of Okarito. Approximately 750 parcels ol land are to he brought under the Act. The District Land Registrar desires it to he understood that notwithstanding the above Th tended order, lie will bring iiiiv parcel under the Act. if so requested Lo do so hy the solicitors or licensed land brokers acting in a proposed Lroiisaetion therewith.