The Troubled Borderlands of Torrens Indefeasibility: Lessons from Australia and the United States

Abstract

Far from providing the certainty intended by a system of title by registration, the operation of Indefeasibility exhibits a somewhat more uncertain form than the legislation that creates and the cases that interpret it might at first concede. Rather, using two examples, the article argues that indefeasibility is surrounded by an uncertain and troubled borderlands; first, both spatially and temporally, indefeasibility shifts, alters or simply morphs through the doctrines of adverse possession and accretion, or second, Torrens may simply not be accepted by those to whom it applies and when that happens, those who resist might suffer injustice at the hands of a system intended, in providing certainty of title, to prevent it. The article contains four parts. Part II provides a very brief overview of the nature of indefeasibility as it is found in Australia and the United States. Part III explored the troubled borderlands: adverse possession, which we refer to as the potential for indefeasibility to morph temporally into defeasibility or nothingness; accretion, which holds the potential to morph spatially, adding to or expanding the physical land to which indefeasibility attaches; and the distressing North Carolina story of resistance to and rejection of the indefeasible title itself. Part IV offers brief concluding reflections about the nature of Torrens indefeasibility of title.

Keywords: Borderlands, Property, Torrens

JEL Classification: K11