Faculty of Law, The University of the West Indies, Mona Campus

LAW 2210 – REAL PROPERTY I

André Sheckleford
([email protected])
Worksheet 8
Torrens Title

Learning Outcomes:
By the end of this topic, students should be able to:
 demonstrate an understanding of the fundamentals of the Torrens title;
 demonstrate an understanding of how the Torrens system may be distinguished from the
old title system;
 demonstrate an understanding of the key principles of the Torrens system;
 demonstrate an understanding of the concept of “indefeasibility of title” arising from the
system, and the effect of fraudulent transactions;
 demonstrate an understanding of, and the relevance of, caveats against dealings, and how
these correlate with equitable interests.
I. Introduction
Conveyancing by way of ‘old title’ or ‘common law title’ is plagued with many inherent
difficulties, such as the need to establish ‘good root of title’ and priority rules. To counteract this
the ‘Torrens system’ of land registration emerged. The Torrens system is found in many
jurisdictions in the region, including Belize, Dominica, Jamaica, St. Kitts and Nevis and Trinidad
and Tobago. We will examine the Torrens system of registration by reference to the Jamaica
Registration of Titles Act (ROTA).
Reading
Moore G, Real Property, 3rd ed (OUP 2012), Chapters 3 – 4 (library, open-shelf)
Hepburn S, Principles of Property Law, Ch. 11 (on OurVLE)
Kodilinye G, Commonwealth Caribbean Property Law, 4th ed (Routledge 2014), Chapter 14
Recommended (for general information): Johnson S, ‘Building the Cadastral Framework:
Achievements and Challenges in the English-Speaking Caribbean’ [link]
II. Nature of Torrens Title
Fundamentals
The underlying and fundamental concept of Torrens Title is that a person may consult the
Torrens Title register and be satisfied that what is stated in the Register is the true state of affairs
in relation to a particular property, i.e. who the owners of the property are and those who are

1
entitled to an interest in the property. As stated by the Board in Gibbs v Mesor [1891] AC 248
(PC Victoria) at 254:

The object is to save persons dealing with registered proprietors from the trouble and
expense of going behind the register, in order to investigate the history of their
author's title, and to satisfy themselves of its validity. That end is accomplished by
providing that every one who purchases, in bonâ fide and for value, from a registered
proprietor, and enters his deed of transfer or mortgage on the register, shall thereby
acquire an indefeasible right, notwithstanding the infirmity of his author's title.

Some intricacies of the system were explored by the Board in Half Moon Bay v Crown Eagle
Hotel (2002) 60 WIR 330 at 336-7:

[21] The 1889 Act introduced a Torrens system of land registration to Jamaica. The
general features of such a system are very familiar. Title to land and incumbrances
affecting land are entered or notified in the Register Book, and everyone who acquires
title bona fide and in good faith from a registered proprietor obtains an indefeasible
title to the land, subject to the incumbrances entered or notified in the Register Book
but free from incumbrances not so entered or notified whether he has notice of them
or not.

[22] The Register Book consists of the original certificates of title, each of which
forms a separate folium of the book. The registered proprietor is given a duplicate of
the certificate bearing the number of the volume and folium of the Register Book in
which the original is entered; s 55 of the 1889 Act. An instrument purporting to affect
land is taken to be registered when it is produced for registration, provided that it is
subsequently entered both on the relevant folium and on the duplicate; s 58. There are
further provisions to ensure that every entry on the original certificate is matched at all
times by a like entry on the duplicate.

Torrens Title has been distinguished from common law title, with the former being described as
a form of “title by registration” with the indication being that the latter gives rise to a possibility
of registration of title. A judge in the Australian High Court had the following to say in Breskvar
v Wall (1971) 126 CLR 376:
[15] The Torrens system of registered title of which the Act is a form is not a system
of registration of title but a system of title by registration. That which the certificate of
title describes is not the title which the registered proprietor formerly had, or which
but for registration would have had. The title it certifies is not historical or derivative.
It is the title which registration itself has vested in the proprietor. Consequently, a
registration which results from a void instrument is effective according to the terms of
the registration. It matters not what the cause or reason for which the instrument is
void.

The main thrust of this proposition is that the registration under the Torrens system is what
actually gives the proprietor title, as distinct from title under the old system which is historical in
nature. Registration as proprietor confers on the proprietor an estate in fee simple: section 26 of
ROTA.

2
 Distinguishing from the Old System and ‘Deeds Registration’
Common law title is not free of any system of registration – there is a deeds statutory deeds
registration system (see for example the Jamaica Record of Deeds, Wills and Letters Patent Act).
However this statutory deed registration did not remove many of the difficulties of common law
title, one of its main vulnerabilities being that the common law legal estate could be defeated
through the doctrine of notice or through lack of bona fides. The priority system inherent to
common law title meant that good title was only conferred to a BFP. Some key differences
between the old system and the Torrens system identified by Hepburn are:
i. the old system, which required proof of ‘good root of title’ (which required showing a
chain of title), is particularly onerous and time consuming. The Torrens system
replaced this with a simpler and efficient methodology, requiring each parcel of land
falling within the operation of the system recorded on a separate certificate, called a
folio, and stored in a central registry. Under the new system a parcel of land may be
referenced by its volume and folio number;
ii. the doctrine of notice has very limited application in relation to Torrens title;
iii. the method of conveyance: under the Torrens system conveyance takes place by
registration of a properly executed transfer, rather than by a deed of conveyance.
When the transfer is registered, the new owner (i.e. the registered proprietor) gets a
copy of the folio which is referred to as a ‘duplicate certificate of title’.
Principles of the Torrens System
The Torrens system is underpinned by three main principles:
The mirror principle: the register is a title which accurately reflects (mirrors)
completely the current facts which are material to title. Subject to a few exceptions, the
title is free from all adverse burdens, rights and qualifications unless they are mentioned
on the title.
The curtain principle: the register is the sole source of information for those enquiring
title, and there is no need/requirement for an intending purchaser to look behind what is
stated in the register (see the quotation from Gibbs above).
The insurance principle: should an error by the Registrar of Titles cause loss to a party,
that party may bring an action against the Registrar: see for example sections 162 and
164 of ROTA.
III. Indefeasibility of Torrens Title
The concept of “indefeasibility of title” is set out at section 68 of ROTA which provides:

…every certificate of title issued under any of the provisions herein contained shall
be received in all courts as evidence of the particulars therein set forth, and of the

3
 entry thereof in the Register Book, and shall, subject to the subsequent operation of
any statute of limitations, be conclusive evidence that the person named in such
certificate as the proprietor of or having any estate or interest in, or power to
appoint or dispose of the land therein described is seised or possessed of such
estate or interest or has such power.

This general notion of indefeasibility, considered central to Torrens title is a manifestation of the
curtain principle. There are, however, some exceptions to the concept of indefeasibility, some of
these being set out in the various Torrens legislation.
Santiago Castillo Ltd v Quinto and another (2009) 74 WIR 217 (PC, Belize) at [39]
Recreational Holdings Ja. Ltd. v Lazarus [2014] JMCA Civ 34 (J’ca CA) at [70]
For some examples regarding indefeasibility of title, see:
Wilcocks v Wilson (1993) 30 JLR 297 (J’ca CA) [see discussion in Kodilinye]
Wedderburn v Capital Assurance Building Society SCCA No 77/1998 (J’ca CA)
James v Dallas [2019] JMSC Civ. 184 (J’ca SC)
According to section 70 of ROTA rights which would ordinarily take priority are, except in cases
of fraud, defeated by the registered proprietor, except
 cases of fraud;
 where there is overlapping registration with lands contained in a prior registered
certificate of title;
 where there is an improper demarcation of boundaries of the land contained in the
certificate of title;
 where the sovereign patent vesting the land in one other than the sovereign contains
reservations, limitations etc;
 where rights accrued under a statute of limitation (i.e. possessory title rights) arise for
consideration;
 easements acquired after the land was brought under the operation of ROTA;
 leases for a term of three years and under.
These exceptions in section 70 may not be a closed list however. It has been held that where
ROTA itself gives protection to a bona fide purchaser, this is akin to the exceptions to
indefeasibility of title in section 70: Sheckleford v Mount Atlas Estate SCCA No. 148/2000 (J’ca
CA).
There are also statutory exceptions to the concept of indefeasibility in other legislation. See for
example the Jamaica Property Rights of Spouses Act, sections 19 and 22.
Section 71 represents a limitation on the doctrine of notice; save in cases of fraud, a purchaser
has no obligation to acquire into the circumstances of a prior registered proprietor, and further
that that purchaser is not affected by notice, actual or constructive, of any trust or unregistered
interest. The Act also clarifies that notice does not equate to fraud.

4
 Half Moon Bay v Crown Eagle Hotel (2002) 60 WIR 330

So what does equate to fraud?

Assets Co. Ltd. v Roihi [1905] AC 176 (PC, NZ):

by fraud in these Acts is meant actual fraud, i.e., dishonesty of some sort, not
what is called constructive or equitable fraud - an unfortunate expression and
one very apt to mislead, but often used, for want of a better term, to denote
transactions having consequences in equity similar to those which flow from
fraud. Further, it appears to their Lordships that the fraud which must be proved
in order to invalidate the title of a registered purchaser for value…must be
brought home to the person whose registered title is impeached or to his agents.
Fraud by persons from whom he claims does not affect him unless knowledge
of it is brought home to him or his agents. The mere fact that he might have
found out fraud if he had been more vigilant, and had made further inquiries
which he omitted to make, does not of itself prove fraud on his part. But if it be
shewn that his suspicions were aroused, and that he abstained from making
inquiries for fear of learning the truth, the case is very different, and fraud may
be properly ascribed to him. A person who presents for registration a document
which is forged or has been fraudulently or improperly obtained is not guilty of
fraud if he honestly believes it to be a genuine document which can be properly
acted upon.

Frazer v Walker [1967] 1 AC 569 (PC, NZ) [W forged H’s signature re mortgage,
mortgagees sold property to innocent purchaser]
Breskvar v Wall (1971) 126 CLR 376 (Aus HC) [Bs secured loan by mortgage, doing so
by giving mortgagee (W2) transfer docs with transferee blank; mortgagee fraudulently
inserted W1’s name as transferee; W1 sold land to X, a BFP; before transfer registered Bs
lodged a caveat to protect interest]
In Breskavar note the competing equitable interests, and how they were
addressed.
IV. Caveats against dealings
These types of caveats are dealt with at sections 139 – 140 of ROTA. The idea is that anyone
claiming an interest in land, whether via ROTA itself or some other element of the law (such as
all the equitable interests we have been studying this semester), that person may lodge a caveat
on the certificate of title.
The caveat acts as a procedural device, forbidding the Registrar of Titles from registering any
dealing which is or may be prejudicial to the interest claimed in the caveat. The probity, or lack
thereof, of the caveat lodged has no effect on the relevant procedure. As noted by the Board in
Rose Hall v Reeves [1975] AC 411 (PC, J’ca) at 420:

5
 …the concept of a void caveat is novel and difficult to comprehend… A caveat is
simply a fact – it may be justified in law or not – and whether it is must be decided
through the procedure laid down in [ROTA].

A caveat may be challenged in two ways:

 a ROTA section 140 application, requiring the caveator to “to show cause why such
caveat should not be removed” ;
 by lodging a ‘dealing’ (such as a transfer of interest), 14 days after which the caveat will
lapse (placing the onus on the caveator to seek an injunction).
The caveat is a central tool for anyone who wishes to claim an interest, whether equitable or
otherwise, in relation to registered land. If there is a dealing which will threaten this equitable
interest, a caveat ought to be lodged to confer some measure of protection as should a purchaser
have his interest registered without any indication of the claimed interest on the land the
purchaser, absent fraud, takes the property free of that equitable interest.
Barclays Bank DCO v Administrator General and Hamilton (1973) 20 WIR 344 (J’ca
CA)
Wedderburn v Capital Assurance Building Society Ltd SCCA 77 of 98 (15 March 1999)
(J’ca CA)
Tutorial Questions
1. What are the fundamental principles behind the Torrens title system?
2. Examine the copy of the certificate of title which is attached.
i. Can you identify the current registered proprietor?
ii. Can you identify any encumbrances?
iii. Can you identify any advantages in favour of registered proprietor?
iv. What is the effect of the caveat on the title?

3. What is the concept of indefeasibility? What type of transactions are inroads into
“indefeasibility”?
4. What is the purpose of a caveat against dealing? What is the effect of such a caveat?

6
Title Report for Volume:1156 Folio:974

XIAMORA KNOWLES
Breadpan