Reading the ongoing thread about title-searching in the US, I’m (a) very glad that western Canada went to the Torrens system, and (b) puzzled why it appears that the states in the US have all rejected it.
It’s such a cleaner system, with WYSIWYG guaranteed title, no need for title searches, certainty that what’s shown on the title are the ony claims against it, and so on.
New York does have a (somewhat limited) version of the Torrens system. So do Massachusetts and Hawaii.
As for the rest, most of the time, chain of title isn’t that hard to prove. It helps that the history of most jurisdictions is a lot shorter. We don’t have to prove shit all the way back to Augustus Caesar or whatever.
Huh? Up in Jefferson County, I had to work with Abstracts of Title on and off for virtually all my years of adult employment, for one reason or another. Did you mean NYC does?
sure, but Canada’s western provinces were settled about the same time as the mid-west, so that’s not a difference.
Plus, it’s the difference between having to do title searches and not - I can go on-line, check the title of any parcel of land anywhere in Saskatchewan on the provincial title system, for free, and I know what the title is. That’s it. Takes all of a minute.
As I understand things, Torrens merely invented the system. He did not attempt to sell it; except, perhaps, in a figurative sense, by urging governments to adopt it. At any rate, Torrens’ activities were largely confined to Australia and Australian governments; to the best of my knowledge, he never set foot in North America. Still, in North America, the Torrens system has always been used in parts of Canada, and is slowly replacing a registration system in other parts of Canada, but remains unpopular in the US. Northern Piper has a good question.
In the time since the earlier question in the other thread was posed, I did find this paper, which (among other things) discusses the Torrens system in the American context. Of particular note is this, from page 40 of the paper:
Perhaps the reluctance of most American jurisdictions to move to a Torrens system can be summed up as, “We’ve always done things this way, and if it ain’t broke, why fix it?”
Sure, and changing once a system is well-established is very difficult, as the experience in Ontario shows. However, the mid-west and Rocky mountain states were being settled after Torrens came up with his system, so it would have been easy to adopt it when the land laws were first being implemented in those territories and states.
Well, there we may have seen a sales job. It is easy to picture the title companies from the east telling the midwestern and western territories and states, “Look we’ve done this for years and we know what we’re doing. You can go with this other thing that is untried in the US, or you can let us–with all our experience–look after things for you. Besides, as a new state, you’ve probably got other more important things to attend to right now.”
And perhaps there was a bit of anti-British sentiment as well. “The Torrens system is used in British colonies, and we are certainly not one of those!”
Just a couple of guesses, but they would seem to be sensible ones.
The Torrens system makes perfect sense. However, widespread adoption would threaten the income of title search firms, closing attorneys, title insurance firms, etc. All of these interests have big lobbying activities in state legislatures.
So, it won’t be adopted.:smack:
That’s a major factor. Also, NIH (Not Invented Here), and the ponderous inertia of government bodies.
I suggested our local county put their zoning book online in 1998. In 1999, I volunteered to post the text myself on my own web site (it’s public information), free, and every year I got a floppy from the department with the latest data, made a PDF file, and posted it. It wasn’t until 2011 that they finally did it officially, and their site didn’t have the search capability mine did.
Government moves at glacial speeds, and unless there is a clear advantage to some new system, may not move at all.
It may be an aside, but this may be one of the reasons why metrication never caught fully in Canada: we had too much in regards to land records in Imperial units. Building plans were all in feet and inches, road allowances were generally one chain (66 feet or the unworkable 20.1168 m), and frontages and depths were as much to the even foot as they could be (for example, my pre-metric-in-Canada house has a frontage of an even 50 feet, which is 15.24 m). On a larger scale, Ontario used the concession road every 6600 feet (1.25 miles or 2011.68 m) to establish baselines for subsequent subdivision, since two north-south concession roads and two east-west concession roads enclosed an even 1000 acres. The western provinces followed the American lead of 160-acre quarter-sections.
At any rate, while conversions could be done, and were as circumstances demanded, many records remained in Imperial units until they absolutely had to be changed, as when land transferred. And there are many properties out there that have not transferred since before we went metric. Their records at the titles/registry office, at the property tax assessment office, and similar; are still in Imperial.
The lecturer that I had for Real Property had done some research into the question of why the Torrens system hadn’t become established in any significant way in the USA. His conclusion was basically the same as this suggestion from Spoons…it was British, and therefore not acceptable, regardless of any advantages it might have.
You can easily know the title holder’s name, but that’s not all there is in a title search. You have to find all the defects in the title and liens, such as taxes, judgments, mechanics’ liens, federal taxes, etc.
I think the main reason is that mortgagees demand a title policy. In Cook County, Ill., which allowed the Torrens system (some of the land was placed in the system, but most parcels were not), title policies were also issued to those parcels in Torrens because the lenders required them.
So the next question is why would a lender require a policy on land in Torrens? Several possibilities come to mind. The Torrens system maintains a pot of money from filing fees, but if a claim exceeded that amount, you are out of luck. A title company has more resources. In addition, Torrens will not defend your title. A title company will. How could a Torrens registration be defective? Forgery comes to mind, at first. Even if you register your deed in Torrens, and your name is shown on the certificate, that does not protect you from someone whose name was previously forged on a deed. Your “title” is void. Another: someone who was married executed the deed as “single, never married.” Consequently, homestead and dower rights were not waived. In short, the Torrens registration is not a guarantee of good title. It cannot preclude the claims of persons who have an actual undisclosed interest. It also cannot preclude the claim of one who was not notified at the time of the initial registration. (I examined title once to property which was registered in Torrens, but a necessary party was not made a party to the proceedings: entirely void as to that person.)
About 15 years ago, Illinois abolished any new registrations in Torrens. Most of the property in Torrens also had title policies on them anyway. The Torrens department in Cook County’s Recorder’s Office took up much space and manpower. Waste of taxpayers’ money when people were getting title policies anyway.
You Canadiens: What about a construction loan? A title company will examine the monthly waivers from contractors, sub-contractors, and materialmen to ensure that there are no mechanics’ liens. (Mechanics’ liens do not have to be recorded or registered.) Does the mortgagee do that work itself or hire another company to do it?
First, in our system, there are no defects in title as shown on the Certificate of Title (Note: certificate, not registration). WYSIWYG. If you are the person who has been defrauded, you can challenge the title as long as it’s still in the fraudster’s hands, but once it’s in someone else’s hands, there’s no defect in title. The person defrauded has an action against the fraudster. Nemo dat does not apply.
Second, all the liens, etc., must be registered to encumber the land title. A person with a claim must register them against title. They’re shown as encumbrances on the title. If not registered, they don’t limit the land title. If you want to review the encumbrances on the title, you have to pay for an online account with the land titles system, but with that account, you can also access all of the encumbrances. And, if an encumbrance is not registered against the title, and someone else buys the land, those encumbrances don’t defeat the title that the new purchaser has acquired. WYSIWYG.
Under our version of Torrens, the title is backed by the Province, and the Province’s liability isn’t limited to the compensation fund. If the land titles denies a claim for compensation, the individual can sue the government agency for the amount claimed.
It is in our case. It’s not a registration of title; it’s a certificate of title.
Same answer as above: If it’s not registered as an encumbrance on the title, it doesn’t affect the title. WYSIWYG. The primary remedy with respect to the lien is that it’s a charge against the holdback that the general contractor is required to maintain.
Not intended as legal advice, of course, just participating in a discussion of comparative title systems.