Known for its chief progenitor, Robert Richard Torrens, this form of title to land was inaugurated in South Australia. Torrens embodied a six-year agitation in the radical Real Property Act 1858 that stormily passed the first parliament under responsible government on 27 January 1858. Its target was the slow, expensive and insecure transfer of land by the exchange between the parties of prolix, cumbersome documents that had to be retained for a century or more to validate new transactions.
‘Torrens Title’ rests on four principles. First, title to land passes by the registration of dealings on a public register, not by the execution of deeds. Second, title is evidenced not by a chain of title deeds but a certificate issued and guaranteed by a government authority. Third, once registered, a purchase is indefeasible, meaning that it cannot be set aside unless the purchaser was guilty of fraud. Finally, innocent dealers in land who suffered unfair or accidental dispossession are guaranteed either their interests or monetary compensation.
The Real Property Act embodied the principle of free trade in land, which Torrens derived from his father, political economist Colonel Robert Torrens; experience of buying and selling interests or shares in ships, gained as a customs official in London and Adelaide from 1836 to 1852 and from a recent British statute; his working knowledge of the registration of deeds, acquired when registrar-general between 1852 and 1858 and as a landowner; the radical ideas of fellow colonists, including the lawyers RB Andrews, H Gawler and WC Belt and the politicians Anthony Forster and WH Burford; and finally, the approach to land transfer registration of the Hanseatic League cities, supplied by Ulrich Hübbe, whose doctorate in laws from Hamburg University dealt with this very point. The package was supported in principle by the 1857 English inquiry into title registration. Torrens’s role consisted of covertly marshalling these ideas and personalities and of publicly advocating the program. As registrar-general, and one of the best paid colonial officials in Australia, Torrens also saw to the administrative arrangements that brought the scheme into practice.
Torrens oversaw major amendments to the act in 1859 and again in 1862. With the exception of the handling of equitable interests, the alterations related to matters of administrative detail. The Act was completely overhauled in 1886, and that statute remains in force in South Australia. Torrens also assisted other colonies to introduce ‘Torrens Acts’ for their own variations of the ‘Torrens System’. Queensland adopted the unreformed 1859 version, while New South Wales, Tasmania and Victoria adopted the 1861 reforms. New Zealand (1875), Malaysia and various states in the United States of America followed suit. Appropriately, South Australia has led the world in the computerisation of real property title information.
Pike, Douglas, ‘The introduction of the Real Property Act in South Australia’, Adelaide Law Review, 1, 1960–62, p169
Real Property Act 1857–58
Real Property Act 1886
Whalan, Douglas, The Torrens system in Australia (Sydney: Law Book Co., 1982)