Before Torrens, people bought property using a deed of conveyance. This was a document that set out in words, when you purchased the land, its location, measurements and any encumbrances. With each transaction would be a collection of all the previous deeds of conveyance for the land. A deed of conveyance is complex and cumbersome, needing the skills of a trained lawyer to certify the title. These skills are seldom taught today.

Sir Richard Robert Torrens (1814-84) introduced a bill into the South Australian parliament in 1858.

“WHEREAS the inhabitants of the Province of South Australia are subjected to losses, heavy costs, and much perplexity, by reason that the laws relating to the transfer and encumbrance of freehold and other interests in land are complex, cumbrous, and unsuited to the requirements of the said inhabitants, it is therefore expedient to amend the said laws…”

Its purpose was to establish a land registry. Each piece of land would have a single Certificate of Title, kept at a government office. The state government would guarantee the validity of the title, rather than the solicitor/conveyancer who prepared the deeds of conveyance. The bill became the Real Property Act (SA) of 1858.

The system slowly spread throughout Australia (to NSW in 1900), and, much later, overseas. Despite different jurisdictions, all states now have a land registry or titles office and use the term ‘Torrens Title’. The process of conveyancing has become so simple that the buyers and sellers of property can do it themselves without a solicitor/conveyancer.

The Certificate of Title shows:

• The present owners
• Easements such as underground pipes that may require access for storm water or sewage, and ‘right of carriageway’ for neighbours get access to their property
• Covenants such as building restrictions
• Caveats such as a requirement for someone’s approval before transfer of ownership
• Mortgages

Strata title (called by different names in some states) is another Australian first. Instead of land, strata title describes a three dimensional block of ‘air space’. It is an extension of the Torrens concept.

Thanks to the Torrens title system, conveyancing is a simple process that anyone can carry out.

When you borrow money to buy a property, you (the mortgagor) assign your title to the property to the lender (the mortgagee) as security for the loan. You still own the property, and your name remains on the Certificate of Title. The mortgagee is also named on the title and has first call on funds from its sale. If you don’t make loan repayments, the mortgagee can take it over, sell it, and keep the money to repay the loan, repaying you the surplus if any.

You may later want to change these loan arrangements, and this involves some legal work.

For example:

Another lender may offer you a better deal. If you accept the deal, you will pay out the original loan with the money you have borrowed from the new lender. This is called refinancing the loan. You will need to transfer the mortgage to the new lender.

Your property may grow in value and you want to borrow more money on it. Even if you stay with the same lender, you are still refinancing the loan and need to change the mortgage. (If you are staying with the same lender, you may not need to do much legal work–check with your lender.)

You may want to pay off the loan altogether and discharge the mortgage.

See our Products pages for information about our refinancing kit. This enables you to do refinancing without employing a solicitor.

Yes! However, it is not legal for you to do it for someone else in exchange for a fee, gain, hire or reward.

What can go wrong?

Remember that conveyancing is mainly to transfer the land component. The buildings are just ‘improvements’. The state government guarantees title details but not the buildings on the land. The old saying caveat emptor (buyer beware) is vital for real estate purchasers.

You are already ahead of any solicitor/conveyancer because you have seen and inspected the property and neighbourhood. You may have even met some of your future neighbours and picked up some local knowledge. The solicitor/conveyancer would not have moved out of their office for your transaction.

For a small fee, a title searcher performs a step of the conveyancing process for you. For example, a title searcher could obtain a copy of a certificate of title, obtain the enquiry certificates (some states) or attend settlement. If you are busy, you can still do your own conveyancing using title searchers and pay less than $200 in total fees for their services (as well as the normal $150-$300 disbursements for fees and certificates).

Title searchers know the conveyancing process back to front, but they are not lawyers. If you use a title searcher, you are still behind the wheel. You need to give clear instructions about what you want them to do.

William of Occam

William of Occam, also called William Ockham (1285-1347 or 1349), was a medieval monk (a scholastic). The Macquarie Dictionary prefers the spelling ‘Occam’, so we have followed this guide.

Occam’s Razor

Occam’s razor , also called ‘law of economy’ or ‘law of parsimony’, is a principle stated by William of Occam, that entities are not to be multiplied beyond necessity (non sunt multiplicanda entia praeter necessitatem).

This principle was, in fact, invoked before Occam by Durand de Saint-Pourcain, a French Dominican theologian and philosopher of dubious orthodoxy, who used it to explain that abstraction is the apprehension of some real entity. Galileo did something similar by defending the simplest hypothesis of the heavens, and other later scientists stated similar simplifying laws and principles.

It is called Occam’s Razor because he mentioned the principle so frequently and employed it so sharply.

He used it:

• To dispense with relations which he held to be nothing distinct from their foundation in things;
• With efficient causality, which he tended to view merely as regular succession;
• With motion, which is merely the reappearance of a thing in a different place;
• With psychological powers distinct for each mode of sense;
• With the presence of ideas in the mind of the Creator, which are merely the creatures themselves.

Thanks to Encyclopaedia Britannica, Inc., 1994

Occam’s Razor links

For further discussion of the principle see the Article in www.weburbia.com

Also

Discussion about other early scientists who used the same principle in Notes by Lloyd Allison of Monash University