- The Torrens Title system is the cornerstone of the Australian real estate market and land economy. However, the ‘state guarantee’ of title does not extend to cover all title related risks and defects.
- Since the introduction of the first Torrens statutes in 1863, NSW has developed robust planning, building and development laws which are now inextricably linked to modern conveyancing practice. Non-compliance with these laws may result in a ‘defect in title’.
- Title insurance operates in conjunction with the Torrens system to provide cover for certain title related defects which fall outside the safety net provided by the Torrens Title system. Legal practitioners should familiarise themselves with title insurance as a potential risk management tool.
There is no doubt that the introduction of the Torrens system into the Australian property market ushered in an era of strong economic and financial growth. However, it is easy to forget that the first Torrens Title statutes were introduced in NSW in the nineteenth century.
The overriding object of the Torrens Title system was to create a new system of title by registration that would be reliable, simple, cheap, speedy, and suited to the social needs of the community. These needs arose in the context of the complications and uncertainties inherent in the ‘old system’ of deed verification/registration inherited from age-old English legal practice.
Much has changed since the first Torrens statutes were introduced into NSW. The risk environment that existed in the 1800s is fundamentally different to that which exists today. For legal practitioners, this risk landscape has been largely shaped by the emergence of massive scale urban development and the introduction of state and local government planning and development laws, regulations, and policies.
This article will briefly examine the limits of the protections afforded by the Torrens Title system and discuss how title insurance operates to ‘fill the gaps’ in respect of the state ‘guarantee of title’.