Private Property in South Australian Torrens Land: A Review of 2018
(2019) 27 Australian Property Law Journal
Posted: 3 Jun 2019
Date Written: June 3, 2019
From all three levels of the judiciary — District Court, Supreme Court, and Full Court of the Supreme Court—which can be divided into two categories: those dealing with the nature and protection of property in land, and those considering the operation of and protections afforded by the Torrens title system as established by the Real Property Act 1886 (SA). The first category can be further divided into two groups: those which deal with the nature of property in land itself, and those concerning the state’s compulsory acquisition of land. Similarly, the second category of decisions, the Torrens title cases, can be divided into three classes — those involving the nature of interests capable of protection within the system, the indefeasibility of title and exceptions to it, and when an interest in land may be caveated. But taken together, these cases also suggest that in order to understand the content of private property in land, one must dig deeper so as to uncover what lies below the surface of the cold, impersonal, language of rights as expressed in law; moreover, no legal result — part of the hard logic of rights — is preordained. Rather, interpretations of legislation are just that: interpretations. Thus, while policy responses to the social realities of property may remain the province of legislatures, calling attention to them and suggesting that the legislature respond accordingly must surely be the preserve of judges. It is important to keep all of this in mind when examining the pronouncements of courts and legislatures in an attempt to determine what private property in land really means.
Keywords: South Australia Property Law, Property Law, Torrens Land
JEL Classification: K10
Suggested Citation: Suggested Citation