Possessory title: Its salience to the Torrens systems of Australian states

Possessory title: Its salience to the Torrens systems of Australian states

The ancient doctrines of possessory title — protecting possessory interests in land, independent of legal title — continue within the Torrens land title registration systems of Australian states, despite evidence in the case law of legal confusions between possessory title and registered title. To analyse possessory title and its confusions, this article applies law and economics theory of possession to possessory title. According to that theory, possession operates to turn ordinary, social expectations into legal reality, and fundamental to the analysis will be Frederick Pollock’s argument that possession is law’s way of mediating scrambled property interests. The analysis is of the social and legal norms of possessory title (also termed ‘adverse possession’) in Australia: the twin legal doctrines; the consistency of the doctrines with the law and economics of possession and modern property theory; and case law evidence of scrambled real property interests when possessory title operates within a formal, legislative Torrens system. From Pollock’s argument, as applied to contemporary real property interests, an ongoing salience of possessory title will emerge. The salience relates to possession’s contingencies. Where Torrens law is unclear and unsettled, social norms formed from community expectations can convert into legal norms. Where Torrens law is clear and settled, social norms can promote shared understandings of the acts of possession a community associates with legal title.

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