Pamela O'Connor

Deferred and Immediate Indefeasibility: Bijural Ambiguity in Registered Land Title Systems

Most countries now have land registration systems, based either upon deeds registration or, more commonly, on title registration. Since there are many variants of each system, commentators often prefer to employ Normans distinction between positive and negative systems of land registration. On this terminology, a positive system is one in which the state warrants that the rights shown on the register are valid and effective according to their terms. This is an authoritative system, a register of conclusions, which allows purchasers to transact safely in reliance on the registered title even if it turns out to have been procured by defective means. In a negative system, registration does not confer or guarantee title, with the result that purchasers must examine the deeds and draw their own conclusions. The positive system is the most essential feature that distinguishes a system of registered title from one of deeds registration. The issue for all systems of registered title is how to deal with bijural inaccuracies. Statutes based on the UK or the Australian Torrens models adopt divergent approaches to this problem. The UK model provides a remedy of rectification whereby a court or the registrar may alter the register to correct an entry that was void under the ordinary rules. This may be moulded to protect 6the rights of certain registered owners, such as proprietors in possession of the land who have not caused or substantially contributed to the mistake by their fraud or carelessness.