Indefeasibility of Title

Western Australia’s land titles system “is a system of title by registration.”¹

This means that, once an instrument is registered at Landgate, the title to the interest conveyed in that instrument is indefeasible (subject to very limited exceptions), curing all defects in the period leading to registration.  This is the foundation of the Torrens system and is enshrined in the Transfer of Land Act.²

This principle was recently reinforced by the WA Supreme Court in Saldanha v City of Belmont.³

The facts of the case

In Saldanha, an easement conveying a right of carriageway benefitting the City of Belmont (City) was registered on Saldanha’s land (Lot 337) pursuant to a planning condition.  The previous owner of Lot 337, the elderly Mr Callaghan, had applied to the City for approval to undertake a triplex development on Lot 337.  The City approved the development, subject to (amongst other things) an easement being registered on Lot 337 (at no cost to the City) to “facilitate the orderly movement of vehicular traffic associated with the subject land.”⁴

The approved plan depicted this easement as providing access to the two rear units of the proposed triplex development and extended along the boundary of Lot 337 and the neighbouring land which contained a single dwelling (Lot 339).  The plan showed a fence running along this same boundary between the two neighbours.

The wording of the easement deed, drafted by the City’s solicitors, went beyond what was required in the planning approval, in that the easement was not confined to the facilitation of traffic associated with the triplex at Lot 337, but was granted generally “to the City and… other persons from time to time authorised by the City… full and free right, liberty, power and authority from time to time and at all times hereafter to go, pass and repass for all purposes…”.

The easement was registered in 1993.  In 1995, the City approved a plan for the construction of a triplex development on Lot 339.  The proposed rear units of this new development would have no road access, and as such a condition of the planning approval was for the applicant to negotiate for the use of the easement.

There is no evidence of such agreement being reached.  The occupants of the two rear units at Lot 339 used the easement land between 1996 to 2015 with no formal arrangement in place.

In 2014, Saldanha purchased Lot 337 and wrote to the City indicating their intention to withdraw the easement burdening their land and erect a fence along the boundary of Lot 337 and Lot 339.  In response, the City entered into formal agreements with the two rear units at Lot 339, officially authorising them to use the easement to access their units.

The City also sought declaratory and injunctive relief which was granted at first instance.  On appeal, the Court of Appeal found that the City’s registered interest in the easement is indefeasible, despite it authorising usage which was broader than what was required under the initial planning approval.

The curing of defects

In the absence of fraud, the registration of the easement deed gave the City an immediate indefeasible title to the easement, irrespective of the validity of the easement being granted prior to the registration.

The Court in Saldanha illustrated this principle with the following cases:

1. In Boyd v Mayor of Wellington,⁵the governor of the City of Wellington had gazetted and proclaimed the cessation of land for the purposes of constructing a tramway.  The City of Wellington was consequently registered as a registered proprietor of this land.  It later transpired that the governor’s proclamation was void.  Action commenced by the previous owners to recover their land from the City of Wellington failed as the New Zealand Court of Appeal found that the City of Wellington’s title to the land became immediately indefeasible upon registration. 
2. The Privy Council in Frazer v Walker⁶ approved the approach in Boyd and held that the registration of a void instrument under Torrens legislation is effective to vest and divest title, and to protect the registered proprietor against adverse claims.
3. The concept of immediate indefeasibility was confirmed to also apply to easements in The Owners of Corinne Court v Shean Pty Ltd.⁷  The owner of the servient tenement in this case contended that the easement was void as the signatory of the owner of the dominant tenement had no authority to sign.  Hasluck J held that the easement was indefeasible, even if the alleged defects in its execution were established.

Defeating indefeasibility

There are very limited circumstances in which a court will overrule the indefeasibility of a registered interest.

In relation to easements, section 129C of the Act provides that a court may modify or discharge registered easements by application in limited circumstances.

It is notoriously difficult to successfully argue for the modification or extinguishment of an easement under this section, even where an easement has not been used and obstructed for lengthy periods.  The courts are reluctant to “effect the expropriation of private property, namely, the right of a landowner to the benefit of [an easement], without compensation, unless completely satisfied that the benefit is valueless to such owner from a practical standpoint and does not secure him any practical benefit.”⁸

Lavan Comment

• Caution must be had when granting easements over property.  Once granted, easements generally run with the land, binding all successors in title to the dominant and servient tenements.
• When acquiring a land subject to an easement, you must be wary that such easements will not impede your intended use and enjoyment of that land.  Access easements usually include a clause which prohibits the obstruction of that easement, which would include any obstruction required during any development of that land.
• Interests in land should, where possible, be registered on the title to the land.  This is the safest way to ensure that such interests are protected.