The Torrens System of Land Registration
The Torrens System of Land Registration used by Alberta since 1887 stipulates that a government office has custody of all original land titles and all original documents registered against them. This system is also used by Saskatchewan, Manitoba, British Columbia, Northwest Territories and some areas of Ontario. The Torrens System originates from the shipping registry. “Torrens was an Australian who observed that the title registration and the title history of ocean-going vessels was orderly, accurate and complete, while real estate titles and ownership histories were in chaos. Very simply, Torrens adapted the shipping registry methods to land registry. In the system Torrens introduced, no claim of title or claim against a title is valid unless written and duly registered.”
Government staff in the Land Titles Offices in Calgary and Edmonton examine and register the documents and issue the titles. The government then guarantees the accuracy of the title and as a result, anyone who suffers a loss due to an error on the title or even as a result of a fraudulent transaction is entitled to compensation from the government. The liability associated with this potential compensation is funded through the collection of assurance fees.
The principles of the Torrens system are as follows:
The Mirror Principle – This refers to the “register” or certificate of title, which supposedly reflects accurately and completely the current facts about a person’s title. It does not provide for facts or changes that could be registered but which are not. In other words, a title is free of adverse claims or burdens unless they are mentioned on the title. In practice, this mirror principle cannot be absolutely reliable, as there are certain public rights and burdens which do affect a person’s title even though they are not reflected in the title. Public rights and burdens include the right of expropriation by certain authorities, unpaid taxes, a title or right gained by fraud and certain rights or burdens granted by legislation even though no notice appears on the title.
The Curtain Principle – This means that the current certificate of title contains all the information about the title. Therefore, a historical search to verify that the title is good is unnecessary. Here again, this principle is not always applied and historical or “chain” searches are made in certain circumstances.
The Insurance Principle – This provides compensation for loss of rights. The principle is that the register must reflect the absolutely correct status of the land. If, through human error, a flaw appears and anyone suffers a loss, it is made right so far as money is able to compensate.
Surface Rights and Minerals Rights
The word land is usually used to refer to the surface of the earth. In a legal sense, however, it refers to that which extends from the Centre of the earth to the outer edge of the atmosphere. This is commonly referred to as the “heaven to hell” concept.
Surface Rights and Minerals Rights
Someone who owns surface rights to land owns not only the surface but also the air space above it (subject to the rights of others, such as airlines) and any sand, gravel, peat, clay or marl which can be excavated by surface operations. However, surface rights do not include ownership of minerals. Someone who owns mineral rights to land may own one specific mineral, several specified minerals or all of the minerals (except gold and silver, which, with few exceptions, are the property of the Crown). If the land described on a certificate of title is surface only, the legal description will be followed by a “mineral reservation”, a phrase such as “excepting thereon all mines and minerals”. If the title includes both surface and minerals, it will not have a mineral reservation. If the title is for minerals only, they will be named in a phrase like “all coal, petroleum and natural gas” or “all mines and minerals”.
What Is a Torrens Certificate?
A Torrens certificate, also referred to as the certificate of title, is a document that assigns unassailable ownership of real property to the registered titleholder. The certificate is intended to act as the ultimate authority on the title to a property, and its legal supremacy makes the recording of deeds unnecessary.
Understanding the Torrens Certificate
The Torrens certificate originated in South Australia in the 1850s by Sir Robert Torrens, who, seeking to simplify and facilitate land sales, created a system in which a certificate of title would bestow ownership upon its holder. This certificate was to be issued to a purchaser following a search of the property’s legal history by a government registrar and would provide future purchasers with an indisputable history of ownership.
- A Torrens certificate is a document assigning full, indisputable rights of real property to a registered titleholder.
- With a Torrens certificate, there is no need to record a deed.
- The Torrens system is rare today, with only 10 US states recognizing its use.
- The Torrens system includes an insurance policy sponsored by the government to resolve title disputes.
Torrens property owners are guaranteed that no other parties have a claim to their property. Any potential claimant to a property not listed on the Torrens certificate, however legitimate his or her claim, would be forced to petition a government indemnification fund for compensation. The Torrens system includes a government-sponsored insurance policy to resolve title disputes, rather than the private title insurance that is required for the sale of real property today.
The Torrens system spread throughout the British Commonwealth and to the United States in the late 19th century but is in limited use today. In the US, it remains an optional alternative to the deed recording system – the current, standard practice in real estate transactions – in 10 states.
Today, a Torrens Certificate would appear similar to an automobile title issued by a local registry. It lists physical details of the property in question, such as boundaries,easements, or rights of way, as well as the name and addresses of individual or corporate owners and any lien holders.
The Torrens Certificate System vs. the Recording of Deeds
Unlike the Torrens system, the recording system maintains all records on a property in a central municipal clearinghouse, often a county registrar. Under the recording system, the land is often referred to as “Abstract Property”. Any transfer of ownership under this system requires an exhaustive search which would, ideally, uncover any irregularities in the history of the property. During the late 19th and early 20th centuries, the recording of deeds was far less centralized and automated than it is today. Sir Torrens intended for his system to facilitate transactions under these conditions.