The Modern Australian Property Laws - Coursework Example

Running Header: Modern Law Student’s Name: Name of Institution: Instructor’s Name: Course Code: Date of Submission: Introduction The title deed is a very essential document in all countries. It is a sign of legal ownership of land. It is a genuine representation of an individual’s commitment having paid the required amount to possess a piece of land. Many countries protect the rights of the land owner. This is because of the knowledge that individual rights of each and every person should be upheld. Title deeds show any land in question is really registered to the owner holding the title. This is the case of the Torrens System of Title Registration. This is applicable in Australia. In many instances, this law is overlooked (Hepburn, p 66). There are sections of the law that protect Adverse Possession System. This creates a scenario where the law provides for conflicting stipulations to be applied to the individual property rights issue. In this context, this is in relation to land. The law is expected to be a source of clarity in many situations. In relation to the Adverse Possession System, the law is a source of contradiction for those that have legally acquired land and registered it and those that have squatter rights (Hepburn, p 71). Is it possible to have both legally binding laws in one land situation in one country? Brief Historical Background on Intellectual Property Law Historically, property law was created because of the need to identify who owns what and where. This means that property law is applied to anything that has been legally acquired by someone in the country. Australian property law was as a result of the many cases of fraud. In the land issue a lot of fraud was experienced at the central registry department. It became very necessary for any purchased land to be registered. Registration ensured that the accompanying title deed had been given to the rightful owner. This aimed to limit chances of the same piece of land from being claimed by someone else. This system led to the Torrens System. The system required every individual to register their names and the piece of land that they had purchased (Butt, p 31). The Adverse Possession System takes into account several issues before and after possession of land rights by an individual. This law is applicable in many diverse jurisdictions. It aims to ensure that if a person settles in a piece of land for so long, he or she has the right to own the piece of land. This is adequately represented under the squatters’ rights. This is with consideration that the real land owner knew about his existing land and did nothing about. The squatters in question did everything to the land including regular maintenance. This ensured that the land attained its required level of productivity. This paved way for the legalization of the Adverse Possession Law (Davies, p 31). Torrens System As described above, Torrens System of Title Registration ensured that land was registered for by its owners. The states that subscribed to this system ensured that they had a registry department. The department had the duty of creating entries for all the title deeds that were presented to them. The entries made at the department included the name of the title holder, the size of the stated piece of land and its location. This was represented by uniquely identified folio numbers. There were no chances that two pieces of land would contain the same folio number. This was because of the uniqueness of the registration exercise (Megarry, p 67). Advantages One of the most common advantages was the ability of the mode of registration to be very cheap. Its feature of being cost effective ensured that many land holders were more at ease with this method unlike the chain of title procedure. The chain of procedure method required a land owner to provide a link that shows who owned land before he or she owned the piece of land (Robert, p 17-23). This is a very tedious and costly affair as a particular piece of land could have been possessed by many people. They could be either dead or alive. The information provided on them could also be incorrect. This creates a wild goose chase. Before one purchases a piece of land, they conduct a search. This is a process that helps them identify if the land truly belongs to the person selling it. This enables them to purchase the land from the genuine owner. In the Torrens System, it is very easy to conduct a land search. The results are also reliable. They show the piece of land, where it is located, the current owner and whether it has been registered to another name. This reduces cases of buying land which is already sold to someone else (Bradbrook, p 47). The system is also very secure. The security of the system is pegged on the fact that the registrar develops a specific code that will represent the land details. This cannot be changed randomly. It is also secure based on the fact that once a record has been entered into the system it cannot be erased. Change of ownership will be recorded as the new owner takes possession of the land. They will be given a new reference number to indicate the transaction change. The security of registering a piece of land also ensures that in the event of registration mistakes, a land owner can get compensation. Another advantage that the Torrens System had is that it was very easy to replace any destroyed or lost title deed. In the event that such issues arose, one just needed to go to the registrar’s office with any proof of ownership. This would then prompt the registrar to produce another title deed. In the chain of title method, one would be required to show evidence of all the people who owned that piece of land before him. This would take a very long time and it would greatly hamper all the development activities that were intended on the piece of land in question (Whipple, p 39-46). Disadvantages In many instances, the security of the title deed presented at the registrar’s office was solely at their mercy. In the event that a small mistake is made, it can have adverse effects on the owner of the land. It can also generate the wrong folio number. The land can be wrongfully transferred. This information is crucial to the land owner. The registrar, just like any human being is bound to make mistakes. The mistakes could have adverse effects on the owner of the land. This will require certain measures to ensure that the mistake has been rectified. This will take more time and it will definitely increase the cost (Rost, p 25). As much as it is seen as merely registering a title deed, there are very many procedures to be followed to ensure ultimate and full registration. This may take very many days to effect. In other procedures especially those that touch on transfers, there is need for very many other judicial procedures to be effected. This automatically increases the time frame in which ownership of land is eventually guaranteed. This increases the overall cost and takes more time (Macdonald, p 42). During the process of registration, the system requires that all interested parties be there. They are needed to identify the piece of land, their names, sand its location. This will ensure that the change of title deeds is smooth. This is both electronically and physically. This therefore creates a scenario where if both interested parties are not notified of the registration process, it automatically fails. This means that any agreement forged on at this point is legally not binding. Adverse Possession This law is a contradiction of the true owner’s rights. This is because it gives rise to other stipulations that can be applied in the issues of land. It states that one can be the legal owner of a piece of land. This is without even purchasing it. The squatter’s rights allow a person who has been living in a particular piece of land to be named the owner. Adverse possession law is best seen in the issue of squatters. A good example can be represented by a piece of land. This can be in a marginalized area somewhere. If a group of people come and settle in the area for a long period of time, they are considered the genuine owners of the piece of land in question (Webb, p 16). The law opens grounds to question the legality of the person who comes to possess the land after all that time. If people have been living in a piece of land for close to 40 years, where has the owner been? Did the owner not find the need to come and possess his or her land? What has changed and caused them to want to possess their land now? Where do they expect the people living in the area to go? All this are questions that are presented in the advocacy and use of the law. This creates a clear cut path that allows the presentation of the title to the squatter with absolutely no compensation to the owner (Webb, p 19). Advantages The major advantage of this law is that protects ones land in several instances. A good example is when one has bought land from the owner. A couple of years later, the children or grandchildren of the owner come demanding the piece of land back. In this case, the person who bought this land is protected under such a law. The children’s intent is highly questioned. They have to account to where the have been all this years. They have to present their claims to a legal authority. This aims to identify the legality of their claims. It also aims to identify whether they have any malicious intent or not. The person residing in the piece of land is guaranteed of his or her ultimate peace. This will encourage them to develop their land and go on with their lives. This is unlike the situation where they will be threatened by the new revelation that the land that they are currently holding is under siege from other parties. Adverse Possession System allows the good use of land. Many at times land left bare could be put into good use. Adverse Possession Laws were also strengthened by the some of the issues that were experienced in the past. Many pieces of land were left bare. This was despite the fact many other people were dying of hunger. Squatters took up the land and tilled it to produce the food that was needed. This was allowed because it brought about relief in a very difficult situation. This shows that when there is an urgent need, land can be possessed to remedy a situation. This is especially the case if the owner has not shown any interest on the land for a very long time (Robert, p 41-53). Disadvantages The law has been grossly misrepresented in many situations. There are people who encroach on a piece of land. This is with the understanding that it belongs to someone else. After they have, they develop the piece of land and make it their own. There are some instances that an individual buys land. The land stays bare and without activity for a very long period of time. This may be as a result of limited finances or delayed fruition of intended plans. Does it mean that if someone settles on your piece of land for the many years it has been bare, it is legal? What governs the act under which they can do so? What defines the procedure that remedies the owner’s problems? Why should the owner not be compensated? Adverse possession is a major source of many misunderstandings in society. It brings into effect many negative features. These ensure that they have destroyed all aspects of a very peaceful coexistence between neighbours (Robert, p 12-17). This creates a situation where the society and all its laws are deemed unfair. The nature of the human being easily understands certain instances. It however chooses to reject all others that it does not understand. This is the case with the Adverse Possession Law. System Adopted in Australia Today Australia has adopted the use of both systems. This is with the realisation that both systems are very relevant in the land situation currently. The two systems include the Torrens and the Adverse Possession System. Australia realises that there is need to understand both systems. Australia acknowledges that there is need to register all legally acquired land. It also acknowledges the need to ensure that all land left bare is put to effective and efficient use. It also wants to protect the land owner who has purchased land from a deceased owner whose children or relatives are demanding the land back. These are some of the potential scenarios that have ensured that both laws are in effect. They are a representation of gross contradiction. They however aim to compliment each other to ensure that modern land issues are dealt with modern laws. This is the sole reason that both legislations, though contradictory are in effect (Davies, p 21). Advantages Both laws aim to ensure that a middle ground is achieved when dealing with the issue of land. Those that have acquired land by settling in an area are ensured that the law identifies them as the legal owners. All land owners that have legally acquired land and have gone through the process of registration are guaranteed of its security. This creates a peaceful environment for both parties involved (Macdonald, p 49). Disadvantages The application of both laws creates a very confusing environment. This is the environment that allows individuals to go through the entire process of registration. This is a contradiction as Adverse Possession totally negates the entire process of registration. It is discouraging to many who do not understand how it is a representation of a just system. Laws are supposed to ensure that they do not leave room to be misunderstood or to be misrepresented. The application of both land laws in this case is very confusing. The application of principles of modern Australian laws leads to very confusing situation in the legal justice system (Webb, p 71). All those representing the legal justice system have a duty to understand what is required of them. This is in respect to the different jurisdictions and where they apply in consideration to both laws. Conclusion The Australian property laws are essential; this is because they enable the creation and maintenance of laws. The laws ensure that all property is protected under the laws that govern the country. Though contradictory, the Adverse Possession and Torrens Legislations ensure that they cater for any land issues that may arise. The issue of conveyance is adequately dealt with in the stipulations that are provided in the legislations both accepted by the law (Robert, p 51). The modern law understands that many issues should be understood in the modern context. This means that any special instance should be adequately dealt with under special jurisdictions. The jurisdictions set forth diverse systems that cater for all the special cases of any land issue. The selected laws both have advantages and disadvantages. They both work to ensure that their complimentary roles are understood. This is by the citizens, the law enforcers and any other person who operates within the confines of the set laws. Laws are created to ensure that there is peaceful coexistence among all the people living in an area. The aim of the Adverse Property Law and the Torrens Law is to create the middle ground that is sort when dealing with the lands issue. This is necessary because it ensures that both the owner and the person involved in any form of conflict are amicably sorted. Works Cited Bradbrook, A. J., MacCallum, S. V. & Moore, A. P. Australian Real Property Law. New South Wales: Law Book Co, 2009. Print Butt, P.  Land laws. New South Wales: Law Book Co, 2010. Print Davies, C. Property Law Guidebook. Oxford: Oxford University Press, 2011. Print. Hepburn, S. Principles of property law. New South Wales: Routledge-Cavendish, 2006. Print MacDonald, C., McCrimmon, L., Wallace, A., & Weir, M. Real property law in Queensland. New South Wales: Thomson Reuters, 2010. Print Megarry, R & Wade, W. The law of real property. London: Sweet & Maxwell, 2008. Print Robert, C. An Introduction to Property Law in Australia. Australia: Law Book Co, 2008. Print. Rost, R. O., & Collins, H. G. Land valuation and compensation in Australia. Canberra: Australian Institute of Valuers, 1984. Print Webb, E. & Stephenson, M. Land Laws. Butterworths: LexisNexis, 2009. Print. Whipple, R. T. M. Property Valuation and Analysis. Australia: Law Book Co Ltd, 2010. Print Read More