The history of the Torrens System of land registration with special reference to its German origins

Abstract

The origins of the Torrens System of land registration are not yet clear. Whilst Sir Robert Richard Torrens maintained that he drafted the Act alone, along the lines of the Imperial Shipping Act 1854, certain comparative analyses have shown that this could not have been the case. This thesis examines the claim of Torrens' contemporary, Dr. Ulrich Htibbe, a colonist and lawyer from Ge1many. He asserted that he collaborated with Torrens to bring about the ·adoption of the land law of his hometown Hamburg in the form of the Real Property Act 1858 (SA). Even though there is strong evidence which supports this claim, there has been no systematical examination of it. The approach to the problem is two-fold. First, historic~lly, collecting and analysing all relevant historical sources and second, comparative legal, contrasting Hamburg's land law at the beginning of the 19th Century with the first bill of the Real Property Act 1858 (SA). The historical approach categorizes the material systematically. All relevant sources have been incorporated. In particular, material from German colonists in South Australia in the form of statements or newspaper articles have been included. The historical analysis is supplemented by a legal comparison between the original Torrens System and Hamburg's land law which is fundamental to the solution of the possible German origins of the system. Furthermore, the comparative part provides a basic description of Hamburg's land law at the relevant time, which has not yet been available in this context. Regarding the comparative analysis, the author elaborates the particular processes which govern the adoption of foreign laws. In particular, processes of adaptation to which a legal transplant is inevitably subject prove to be important in relation to the possible relationship between the Torrens System and Hamburg's nineteenth Century land law. The results of the historical examination show that it is likely that Ulrich Hilbbe was the actual draftsman of the first bill. The legal analysis, on the other hand, demonstrates two things: first, that there is a strong similarity between Hamburg's land registration system and the original Torrens System; second, that the outstanding differences between the systems can be explained by the natural adaptation processes which are implied by the adoption of laws.