The Torrens system v English Deed system PDF

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The Torrens system originated from South Australia by Sir Robert Richard Torrens in 1858. Under the system, a Certificate of Title exists for every separate piece of land. The certificate contains a reference that includes a volume and folio number, ownership details, easements or rights of way affecting the land and any encumbrances including mortgages, leases and other interests in the land. Malaysia has adopted three versions of the Torrens system; i) For Peninsular Malaysia, enacted in the National Land Code, Act 56 of 1965; (ii) For the state of Sarawak, enacted in the Sarawak Land Code, Chapter 81 of 1958; and (iii) For the state of Sabah, this is enacted in the Land Ordinance (Sabah Chapter 68). Unlike the National Land Code and the Sarawak Land Code, the Land Ordinance (Sabah Chapter 68) does not provide any indefeasibility of title. This system ensured the indefeasibility of title to the land registration and its transaction where it overcomes the uncertainty in land proprietorship. The land title will be formally provided in duplicate, one will remained with the Land Office or Land Registry Office, while the another one will be kept by the land owner. English Deeds System refers the deed itself is registered. English Deeds System was enforced by the English colonial administrators where all land shall be vested in the Crown as the English property law. Deeds registration is a system where the documents recorded in the land registry are the evidence of title. The deed does not reflect the proprietorship and the chain of proprietorship has to be traced back by the land owners, which means back to the earliest grant of land by the Crown to its first owner. There are various differences between the two systems, a few differences are: 1) Passing of title – Under the deed system, title is passed upon execution, signing, sealing and delivery while under Torrens system the title passes upon registration. 2) Accuracy- Deed system is filled with uncertainty; it is complex, expensive and cumbersome while the Torrens system is simpler, easier and secured. 3) Security- Under the deed system- registration is not compulsory, despite the availability of some form of recording while under the Torrens system registration is everything and it is compulsory for any dealing on the land to be registered. 4) Guaranteed by state- The title obtained under the deed system is not guaranteed by the state since transactions are made personally between the parties. The Torrens title is guaranteed by the state and in the event there are errors, it is easily detected. Hence any loss suffered due to defects in registration, the state will be responsible for such errors caused by its officers. The Torrens System consists of two main principles which made it based entirely on registration, known as i) mirror principle and (ii) curtain principle. Mirror principle shows the title functioned as a mirror that informs every important item about the land to any relevant parties that involved such as purchaser-to-be or mortgagee-to-be. Meanwhile, the curtain principle referred the title as the curtain where any parties that involved in the land transaction only required to depend on all information contain in it so there is no need for them to find other information except from the title. These dual principles form the concept of ‘indefeasibility of title’ that been clearly recognized in the Section 340(1) of National Land Code 1965.

Compare to English Deeds System, the system based on the principle ‘nemo dat quod non habet’ (no one gives what he does not have) where it needs search of the chain of deeds that may involving hundred of years and probably intervened by many changes in land proprietorship so it will results the slow process of land transaction which will cost time and more money. In Torrens System, the land administration works effectively and efficiently without any distraction. Land dealings such as transfer, lease, mortgage, lien and easement will be registered in the title which assists the Government to control or detect any doubt in land dealing that may lead to the speculation in land transaction. People that involved in land dealings do not have to waste too much time in title search. The Land Office or Land Registry Office has the duplicate of titles with them so it will ease the people involved. In the case of land acquisition that the Government has to acquire any possible land for the purpose of public benefit, the Government will pays the compensation for those whose land is affected by the acquisition. There are more advantages of Torrens System compared to the Deed System namely (i) Security and certainty of title – Once officially registered, it is being considered guaranteed by the government; (ii) Diminution of delay and expenses – It is due to cutting off of retrospective investigation of titles and the simplification of dealings of registered land; (iii) Simplification of titles and dealings – With the use of simple and stereotyped forms; (iv) Accuracy – There is precise description of land and of all interests held in it; (v) Indefeasibility of title. However, it is subject to certain exceptions. In conclusion, Torrens System constructs the more appropriate method in the land administration compare to English Deeds System and has the large impact in our National Land Code 1965....