Indefeasibility is an integral aspect of Property Law. If indefeasibility of title did not exist, competing claims over land ownership could cause inconsistency in the property law system. Conversely, you may also experience issues related to the defeasibility of your title upon or prior to the registration of your land or building.
This article will provide a simplified and informative explanation on what indefeasibility means as a legal principle, and how this operates in property ownership.
Indefeasibility
If your title is indefeasible it means there is an inability to challenge a claim over your land. The immediate indefeasibility of your title occurs when you have registered your title with the NSW Land Registry. This title has the highest priority of ownership above all others. This is because prior interests are set aside once indefeasibility takes effect.
Torrens Title and the Old System
To understand the indefeasibility of your title, it is important for you to know the two different registration systems in Australia. This is due to the intended land you are registering could be held under Old System Title.
Furthermore, land ownership was simplified with the introduction of Torrens Title. This registry records all the details and interests related to your land. These records include grants, folios and dealings that have been registered under the Real Property Act 1900. Also, the Torrens System guarantees the establishment and validity of your title.
However, in cases where your property is registered under the old system, you do not need to establish indefeasibility. Instead, the title of land is established through a paper trail of historical ownership. This trail include title documents and transfer deeds.
Exceptions to indefeasibility
There are two major exceptions to the indefeasibility of your land title:
Fraud
Your property can lose Indefeasibility through fraud. This may occur prior to or during the registration of your interest. This can also occur when you or your agent had the intention to prevent another individual from claiming an existing right or by performing a deliberate or dishonest act.
Personal Action
If there are no claims under the fraud exception towards the indefeasibility of your title, then there may be a possible personal action taken against your interest. That is an action against the contract of your land or title deed.
Futhermore, if you are unsure whether a claim can be made over your title, it is worth consulting a property dispute lawyer for further advice.
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