Pandora’s Box? An Exploration of S 81 of the Land Transfer Act 1952 and Its Effect on Indefeasibility of Title

30 Pages Posted: 27 Jul 2016

See all articles by Scarlet Roberts

Scarlet Roberts

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: 2015

Abstract

Section 81 of the Land Transfer Act 1952 has a tumultuous past. It has faced various criticisms surrounding its potential for undermining indefeasibility of title, a key concept under our Torrens system of transfer. This paper addresses some of these criticisms, positing first that S 81 does in fact grant the District Land Registrar a wide discretion to correct or cancel titles which have been gained fraudulently or wrongfully, and secondly that this discretion should be exercised if an appropriate case surfaces. Such an exercise is supported by the approach taken in other Torrens jurisdictions and can be regulated through the adoption of a number of simple guidelines, to be considered during any exercise of discretion under S 81. This will reduce the risk of any uncertainty arising from a wide interpretation of S 81 and ensure that the overall justice of the case is the central consideration of any exercise of discretion.

Keywords: Land Transfer Act 1952, S 81, District Land Registrar, powers of correction, meaning of 'wrongful', indefeasibility

JEL Classification: K11

Suggested Citation

Roberts, Scarlet, Pandora’s Box? An Exploration of S 81 of the Land Transfer Act 1952 and Its Effect on Indefeasibility of Title (2015). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 41/2016, Available at SSRN: https://ssrn.com/abstract=2814394

Scarlet Roberts (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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