Torrens and trusts: Weight of policy versus protecting the beneficiary

Abstract

Torrens title represents a policy decision favoring certainty of legal title over the remedial flexibility, and so somewhat less certain status, of equitable title. Confusion about this policy often arises in calls for ‘noting of trusts on title’ so as to allow the ‘true owner’ to be ascertained. This article considers whether sufficient protection currently exists within Torrens systems for equitable interests—especially the express trust of a fee simple—through exceptions to indefeasibility, caveats, or other means of notation. Part II recounts the nature of equity as it affects real property law generally. Part III examines the policy of Torrens with respect to equitable interests. Part IV considers the arguments that might be advanced on both sides of the debate over the place of trusts within Torrens systems. Part V concludes: while there are sound reasons for possible reform through allowing for the notation of trusts in the Register, that change would not come without cost, legal, pragmatic, and material.