The difference between Old Law Land Tenure and Torrens Title

The Old (General) Law Land Tenure System

The first land tenure system to be introduced into Victoria in March 1838 was called the ‘General Law’ or ‘Old Law’ System. This was directly based on the principles of the English Common Law where land was acquired through settlement and reason rather than conquest.

The Old Law System is still in effect with roughly 3% of Victoria’s land. The remaining 97% has been brought under the Transfer of Land Act. The Old Law system was very time consuming and expensive to keep in operation. The system is called the General Law system as it is subject to the common law of the state. Current property law is subject to a particular act.

Property dealings were carried out by deeds.  The state does not register titles under deeds and hence does not certify the title. A deed is simply recorded by the state and is only used for any counter claims to land ownership. For a dealing to be successfully carried out under Old Law, a memorial must be filled out at the Registrar General’s Office. This memorial is part of a package of documents for the parcel consisting of every dealing in the history of the parcel back to the original Crown Grant. Without this chain of title deeds, a transfer of land cannot be undertaken. This makes Old Law an expensive and time consuming process to maintain, as with a break in the chain such as a missing deed it requires the services of a solicitor.

A downfall of Old Law, is there is no need to register a memorial as it is only deemed as a notification device. A memorial is simply an extract of the information contained in the documentation of the transaction. Obtaining the original copy is quite a difficult process, but the chain of deeds must be complete for a transaction to occur. The proof of ownership of an old law title lies directly with the owner. The state provides no guarantee of the parcel of land. The term “root of title” refers to the fact that with Old Law titles, the chances of an error or defective title increases over time.

Old Law deeds did not have a diagram of title, but a written description of the position of the parcel. This is a difficult way of explaining the parcel of land, as it can be misinterpreted by the reader. Having a clear and concise diagram of title under the current Torrens system means that anyone can pick up the diagram and understand its meaning. Due to the poor survey methods of the time, the title dimensions often did not match those on the ground. A Royal Commission in 1885 brought in principles to handle title differences and enable amendment. Old Law titles could not be amended and the low accuracy of them can still be found today.

When a parcel of land is subdivided under the Old Law system, there is no official registration of the subdivision unlike today.  The owner of the parcel of land will retain the chain of titles until the last lot is sold. The chain is then passed onto the purchaser of the last lot for their keeping. The owners of the remaining lot will still need access to the titles, so the purchaser of the last lot will need to make this available. When the subdivision is undertaken there is no record as to who purchased which lot as the only recorded information in the memorial are the original owner and the parish name.

The difference between Old Law Land Tenure and Torrens Title