Torrens and trusts: Weight of policy versus protecting the beneficiary
Date
2023
Authors
Babie, P.
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Journal article
Citation
Australian Property Law Journal, 2023; 31(1):28-49
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P. T Babie
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Abstract
Torrens title represents a policy decision favoring certainty of legal title over
the remedial flexibility, and so somewhat less certain status, of equitable title.
Confusion about this policy often arises in calls for ‘noting of trusts on title’ so
as to allow the ‘true owner’ to be ascertained. This article considers whether
sufficient protection currently exists within Torrens systems for equitable
interests—especially the express trust of a fee simple—through exceptions
to indefeasibility, caveats, or other means of notation. Part II recounts the
nature of equity as it affects real property law generally. Part III examines the
policy of Torrens with respect to equitable interests. Part IV considers the
arguments that might be advanced on both sides of the debate over the place
of trusts within Torrens systems. Part V concludes: while there are sound
reasons for possible reform through allowing for the notation of trusts in the
Register, that change would not come without cost, legal, pragmatic, and
material.
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