| Real Property Act 1858 | |
|---|---|
 | |
| Parliament of South Australia | |
| |
| Citation | 21 Vict. c. 15 |
| Passed by | Parliament of the South Australia |
| Passed | 27 January 1858 |
| Enacted | 27 January 1858 |
| Commenced | 2 July 1858 |
| Repealed by | |
| Real Property Act 1886 | |
| Related legislation | |
| Real Property Act 1860 (24 Vict. c. 11),Real Property Act 1861 (24 & 25 Vict. c. 22) | |
| Status: Expired | |
TheReal Property Act 1858, 21 Vict. c. 15, is theshort title of anact of theParliament of South Australia, with thelong title "An Act to simplify the Laws relating to the transfer and encumbrance of freehold and other interests in Land". After being introduced as aprivate member's bill bySir Robert Richard Torrens, it was passed by both houses and assented to by thegovernor of South Australia, on 27 January 1858.
It was the first law in the world to institute what has become known as theTorrens Title system of property law, and is sometimes referred to as the"Torrens Title" Act 1858. The Act was repealed and replaced by theReal Property Act 1886.
Robert Richard Torrens, son ofRobert Torrens (economist and chairman of theSouth Australian Colonisation Commission), had previously worked in thecivil service incustoms roles in London and Adelaide, before being appointedColonial Treasurer andRegistrar-General from 1852 to 1857. He was elected as a member of theHouse of Assembly for theCity of Adelaide[1] in the new parliament in 1857,[2] and on 1 September 1857 became the thirdPremier, although his government lasted only a month.[1]
For years before his election, he had vigorously promoted the need for land titles reform,[1] with the current system of transfer of land bydeed ineffective, slow, expensive and insecure. It relied on verbose and complicated documents that had to be retained at least a century in order to validate new transactions and lawyers were needed to effect the transactions.[3] The second reading of a bill introduced as aprivate member's bill was carried despite strong opposition, passing through both Houses on 27 January 1858.[4][2]
TheReal Property Act 1858, with the long title "An Act to simplify the Laws relating to the transfer and encumbrance of freehold and other interests in Land", was assented to on 27 January 1858. At the head of the first page of the transcript, is "Anno vicesimo primo Victoriae Reginae, No. 15", meaning the 21st year of Queen Victoria's reign,[Note 1][5] although the first page of the original document says "1857–8, No. 15".[6]
The act, eagerly anticipated by many, came into effect on 2 July 1858 and was on the whole well-received,[7] apart from some lawyers who would have noted that the ease and clarity of the process would mean less in earnings for them in the future.[8] Torrens was to be appointed Registrar-General in order to assist with the act's application.[9] In this role he did much to bring about a successful transition to the new system.[3] Temporary offices were set up for applicants to apply to have land brought under the operation of the new act.[10]
An indexed copy of the act was published in 1858, edited by W.M. Sandford.[11][Note 2]
The act transferred property by registration of title, instead of bydeeds. It radically altered the method of recording and registering land underfreehold title. Instead, government certificates were issued and a central register established. This system provided an indisputable record, thus almost eliminating litigation involving land disputes, got rid of difficulties created by lost certificates, and reduced the cost of land sales and transfers.[6] The legislation was refined in the following few years, with Torrens overseeing major amendments to the act in 1859 and 1862,[3] which included allowing the licensing of registered land brokers instead of lawyers in land transactions, thus further reducing the cost.[6]
Four main principles underlie the act:[3]
The first sale of land registered under the system was to pastoralistWilliam Ransom Mortlock (later elected to theHouse of Assembly[12]) on 25 August 1858.[13]
So successful was the outcome that it was adopted in the rest of Australia and in many countries throughout the world. The system became known as the Torrens Title system, and the act often referred to as the "Torrens Title Act 1858".[6]
Torrens visitedVictoria in 1860 and assisted in bringing in the new system in that colony.[14] He also helped the other colonies to introduce their own variations of the system: Queensland adopted the 1859 version, while New South Wales, Tasmania and Victoria based their legislation on the 1861 reforms. New Zealand, Malaysia and some states in the US followed;[3] it has since been widely adopted throughout the world.[6]
In 1862, Torrens publishedA handy book on the Real Property Act of South Australia:...,[15] which is now available in full online.[16]
TheReal Property Act 1860 (23 & 24 Vict. c. 11), "An Act to consolidate and amend certain Acts relating to the transfer ad encumbrance of freehold and other interests in land" (17 October 1860)[17] and theReal Property Act 1861 (24 & 25 Vict. c. 22), "An Act to amend the Real Property Act of 1860" (3 December 1861)[18][19] were the main amendments to the Act.
In South Australia, the act was substantially revised in 1886, and this version remains in force in South Australia. TheReal Property Act 1886, updated 3 October 2019, has a long title "An Act to consolidate and amend the Real Property Act 1861, the Real Property Act Amendment Act 1878 and the Rights-of-Way Act 1881, and for other purposes".[20][21]
South Australia has been a world leader in creating digital versions of property title data[3] since the late 20th century, with its Land Ownership and Tenure System, or LOTS.[22]
Attempts have been made to minimise the credit due to Torrens for his great achievement, and it has been asserted thatAnthony Forster, then editor of theSouth Australian Register, made the original suggestion.[23] In the preface to his book,The South Australian System of Conveyancing by Registration of Title, published at Adelaide in 1859, Torrens stated that his interest in the question had been aroused 22 years before through the misfortunes of a relation and friend, and that he had been working on the problem for many years.[24] He also said that the idea was based on principles used in transferring shipping property,[6] of which he would have gained experience in his early career as a customs official, both in London and Adelaide (1836–1852). His experience as Registrar-General (1852–1858), as a landowner himself, and the influence of politicians such as Forster andW.H. Burford and lawyers such asRichard Bullock Andrews,Henry Gawler and W.C. Belt, would have influenced him close to home.[3]
Torrens acknowledged that he had adapted principles from other systems: the system of title registration had been used pre-14th-century Europe, and his research revealed thatBavaria, Austria and Hungary had engaged in this practice for centuries. However, he did not copy those ones, but adapted a system developed for registration ofmerchant ships in Britain. The owner of the ship was given a certificate, which was surrendered to the registrar when the ship was sold, and the new owner would receive a new one.[25]
Torrens was also familiar with a report presented to theBritish House of Commons on 15 May 1857, supplied by German lawyerUlrich Hübbe who had detailed knowledge of the real property laws of theHanseatic League cities[26] and whosedoctorate in laws fromHamburg University dealt with this topic. His input added to the practical application of the method in law, and Torrens worked on this aspect further.[3] With the support ofCarl Muecke and the influential German community,[27] he fought it through Parliament despite virulent opposition from the legal profession.[3]
This entry was first published in S.A.'s Greats: The men and women of the North Terrace plaques, edited by John Healey (Historical Society of South Australia Inc., 2001).
This is a revised version of an entry first published inThe Wakefield Companion to South Australian History edited by Wilfrid Prest, Kerrie Round and Carol Fort (Adelaide: Wakefield Press, 2001). Lightly edited.
[Source]: Douglas Pike,The Paradise of Dissent, MUP, 1957, p.482(Incorrect naming of "Colonel Robert Torrens" reported to site.)
Signed Richard Graves Macdonnell, Governor. "Schedules referred to"--p. 291-296.
{{citation}}: CS1 maint: numeric names: authors list (link)This article looks at the Torrens system through the imagined eyes of Torrens himself... what [he] himself may have thought of the developments in the law of real property under 'his' Act through a reflection on voluntary transactions and forgeries.