For a proper appreciation of the various systems of land ownership which have been operative in New Zealand, due weight must be given to the fact that title to land has always been a matter of public record. This is in direct contrast to the English system, where access to title records can be obtained only by consent of the registered owner. The New Zealand approach has almost certainly stemmed from the contest for land which was associated with the colonising activities of the New Zealand Land Company in the early 1840s. The gold-rush era also made it essential for the pioneers in this country to have certain public knowledge of the ownership of land. New Zealand can be said to be fortunate in that its period of colonisation coincided with a vigorous campaign for reform and order in the system of land ownership in the settled European countries. The Land Registration Ordinance Act of 1841 established deeds register offices in New Zealand and made provision for the registration of Crown grants of land and all subsequent deeds or other instruments by recording and entering a copy on the register. In 1842 a Conveyancing Ordinance was passed laying down the principles to be observed in the ownership of real property and, where necessary, establishing certain departures from the English law necessitated by local circumstances. This ordinance was the forerunner of our present Property Law Act of 1952 in the same way as the 1841 Deeds Ordinance eventually became the Deeds Registration Act of 1908. The deeds system provided a very necessary security of tenure for the early settlers in the difficulties which emerged from the sales of Crown land, the settlement of land claims with the Maoris, and the sudden influx of new settlers. The act of registration did not, of course, perfect the title, but it did provide a system of notice of interests against the land.
The deeds-registration system had the advantage of providing a maximum degree of elasticity, as almost every conceivable right or claim to a right in land could be registered and thus achieve public notice. It had the corresponding obvious disadvantage, however, that no inquiry was made into the authenticity of the deed either as to form or as to content; it was left to the prospective purchaser of land to investigate all deeds in the chain of title back to the Crown grant before concluding his purchase. The deeds-registration system in this country was to a large degree based on the recommendations of the English Royal Commission of 1830.
While investigations were proceeding in England towards a satisfactory system for the ownership of land to halt the chaotic conditions existing there, a system emerged in South Australia which immediately began to attract attention. It was sponsored by Robert Richard Torrens, who was appointed Registrar-General of Deeds for South Australia in 1853, and it represented a combination of the English registration of copyhold, the Roman-Dutch system of land transfer, and the system of transfer under the Shipping Acts. At the outset it was contemptuously described as conveyancing by means of a register and a map, but Torrens's plans have formed the basis of the land-registration schemes which exist today in all the Australian States, New Zealand, four Provinces of the Dominion of Canada, 17 States of the United States, and some 13 other countries or states.
The first Land Registry Act in New Zealand was passed in 1860 with amendments in 1861 and 1862, but the system achieved little popularity and only a few registrations were recorded in the Auckland district. The Land Transfer Act of 1870 represented the introduction of the true Torrens system into this country, and the provisions of the Act of 1870 are basically in operation today. The few amendments which have emerged over the years have generally been of an amelioratory nature and have only changed the mechanics of the Act in accordance with modern practices without departing from its basic principles.
The Land Transfer Act of 1870 provided that the following land should be subject to the Act:
All land which has already in any manner become subject to the provisions of any former Land Transfer Act;
All land alienated or contracted to be alienated from the Crown in fee;
All land in respect of which an order is made under any Maori Land Act vesting land in any person in freehold tenure;
All land vested in any person for an estate in fee simple in possession by virtue of any Act of the General Assembly; and
Land over which the Maori title has been extinguished before 31 August 1874, as soon as a Crown grant or certificate of title in lieu thereof is issued.
These provisions ensured that the land-transfer system would become the preponderant land system in the future. There was also a provision allowing for land registered under the deeds system to be brought under the provisions of the land-transfer system by voluntary application. This latter arrangement met with varying support in different provinces. In the Canterbury Land District, for instance, it achieved a large measure of support, whereas in Auckland it was comparatively neglected.
The two systems continued to function side by side in the same registries administered by the same officers holding dual authority as Registrars of Deeds and District Land Registrars under the Torrens system. The year 1924 saw the fortunate conjunction of an Attorney-General, the Hon. Sir Francis H. D. Bell, and a Registrar-General of Land, C. E. Nalder, who were instrumental in obtaining the passing of the Land Transfer (Compulsory Registration of Titles) Act of 1924 which provided for the compulsory bringing of all land deeds under the land transfer system. Thus New Zealand became the pioneer in the field of compulsory registration of titles, a step which had been vigorously campaigned for in England and other older countries. The work was to be completed in five years, but it was not till the 1950s that the task was finally accomplished.
The difficulty of issuing guaranteed certificates of title from the deeds system, which carried no like seal of authenticity, was overcome by the ingenious device of issuing titles which were stated to be limited as to titles or limited as to parcels, as the case might be. The limitation as to titles meant that there were certain requisitions as to title to be satisfied for the Registrar before he could be in a position to issue a guaranteed title with the full benefit of the indefeasibility provision. Similarly, the limitation as to parcels referred to the fact that a sufficient survey definition would be required before the title would be guaranteed as to boundaries and area.
The basic difference between the deeds system and the land transfer or Torrens system is that the latter is a system of registration of title to land and not merely, as the deeds system was, one of registration of instruments from which title to land was derived. The main purpose of the Torrens' system is to provide a simple and cheap method of recording the transfer and other dealings with land and at the same time to ensure security of title by a system of State guarantee. The mechanics of recording dealings are provided by the creation of a register, each folio of which is an office duplicate of the owner's title. The folio or title has recorded on it full particulars of the proprietorship to the land, together with any changes which occur through transfer, death, or other devolution, and the encumbrances to which the land becomes subject. The cardinal principle of the Land Transfer Acts is that the register is everything and that, except in case of actual fraud on the part of the purchaser, he gets, upon the registration of a transfer an indefeasible title against the world. The position has perhaps been most aptly stated in Re Land Titles Act – Ferguson v. Registrar of Land Titles (Sask, C.A.) (1953) 1, (D.L.R. 36):
Estates and interests pass on registration and not upon the execution of an instrument.
Priority dates from registration and not from time of execution.
The registered owner, except in the case of his own fraud, holds free from all estates or interests not noted on the title, subject to statutory reservations.
A person taking a transfer from a registered owner is not, except in the case of his own fraud, affected by any notice of another's equity or unregistered interest.
The Land Act of 1948 provides for the alienation of land by the Crown, and a fee-simple estate cannot be created under the Land Transfer Act of 1952 unless the land has been acquired from the Crown in accordance with the provisions of the Land Act. The latter Act does, however, provide for the registration of a number of estates, such as leases or deferred-payment licences from the Crown. These instruments may be registered separately thus constituting them a folio of the register. Dealing with such interests requires the consent of the Land Settlement Board.
The Land Transfer Act of 1870 provided for the registration of various forms of dealing with land, transfers, mortgages, leases, and transmissions – to name only some of them – but in recent years there has been an increasing tendency to provide for registration of new forms of dealing with land. The procedure with deferred-payment licences for payment by instalment was first seen under the Land Act, but it is now extended to agreements with the State under the Housing Act of 1955, and to those with local authorities under the Municipal Corporations Act of 1954 and the Counties Act of 1956, all of which are capable of registration under the provisions of the Land Transfer Act of 1952.
A further interesting development peculiar to New Zealand has been the use of the land transfer registers for the implementation of the town and country planning restrictions of recent years. Both the Municipal Corporations Act of 1954 and the Counties Amendment Act of 1961 give local authorities a wide discretion in imposing conditions on subdivision. The responsibility of seeing that these conditions are enforced is placed on District Land Registrars through their registers. Under modern subdivisional techniques, there has been a significant increase in mutual rights of way and services between adjoining sections. This development has to some degree complicated the land transfer registers and greatly increased the conveyancing work required in transfer of land in the new subdivisions. The Land Transfer Amendment Act of 1961 provided probably the most fundamental break from the 1870 Act when it made provision for the creation of the stipulated easements over land by statutory methods instead of by the traditional preparations of lengthy grants of easements by transfer.
The land-transfer system in New Zealand has been charged with undue rigidity, but it can fairly be said that it has always managed to meet the demands of the expanding modern community while at the same time retaining the essential simplicity which is the basic feature of the system.
by Ernest Keith Phillips, Registrar-General of Lands, Wellington.