The Right Honourable Sir Francis H. D. Bell, P.C., G.C.M.G., K.C.,: His Life and Times
Chapter XXIII. — Land Transfer Reform
Land Transfer Reform.
Two systems of titles—Objections to Deeds Registration system—Advantages of Land Transfer Act—Bell's plan to make Land Transfer titles universal—A great reform.
In 1923 Bell set himself to carry through what he truly described as the greatest reform in our land laws since the passing of the Land Transfer Act, 1870. Morley, in his Life of Cobden, says, "like all men of sense Cobden constantly advocated improved facilities in the machinery of the transfer of land."
In like manner the object Bell had in view was to extend the principle of Land Transfer titles so that all land in the Dominion should be held under this simple and inexpensive system. A brief outline of the plan adopted by Bell will make clear both to lawyers and laymen with what skill and ingenuity he overcame the obstacles in his path.
At the time when he took up the problem there were two systems of title in New Zealand—one known as the Deeds Registration and the other the Land Transfer system. The method of conveyancing under the page 224Deeds Registration Act was cumbrous, laborious, expensive, and dangerous. Every title began with the original Crown grant which might have been issued seventy or eighty years ago. This Crown grant and all subsequent dealings affecting the property or any subdivision of the property were copied into bulky volumes kept under the Deeds Registration Act.
"Piles upon piles of volumes," said Bell, "have been manufactured containing copies upon copies of instruments which have long ceased to be of interest but which have to be examined and looked into by anybody tracing a title down to the Crown grant."
Law-clerks had to be specially trained to search titles under this system, and a search would often occupy several days, even when the property was a small section worth perhaps £20. Though the title might have been searched recently by one legal firm, this did not relieve another firm from the necessity of repeating the search, if a new transaction took place even the next week— for each firm was responsible to its own client for the correctness of the title.
Moreover, the Deeds Office had to charge for the work of its clerks in copying all these deeds into the volumes of record, and continually to keep expanding its strong-rooms and accommodation at great expense.
The Land Transfer Act, 1870, came as a great boon to those who thereafter acquired land from the Crown, as their title was issued under that Act. Those who held titles under the old Deeds Registration Act could apply for a Land Transfer title, but had to furnish the page 225Registrar with a complete abstract of their title, removing any existing defects, and pay the heavy charges incidental to the investigation and survey. Thereafter a certificate issued showing at a glance on one sheet of parchment the dealings with the land, and the title was indefeasible.
At the time when Bell approached the problem between 70 per cent. and 80 per cent. of the land was already held under Land Transfer title and the balance was still under the old Deeds Registration system. There was nothing to compel an owner to bring his land under the new system, and as the expense of doing so was heavy, it seemed clear that many years would elapse before all titles would be brought under the Land Transfer Act. Bell decided to bring all titles compul-sorily under the Act without the owner being faced with the heavy charges payable under the existing law. Fortunately there had been built up for many years a large assurance fund by reason of the fact that on each application to bring land under the Act a payment was collected of a halfpenny in the pound on the value of the property dealt with. The purpose of this fund was to meet any claims that might be made for defects in title. The fund had grown so large, and the claims against it were so rare, that part of it had been diverted by Parliament to the public funds of the country.
Bell's first step was therefore to use this fund to relieve owners of the heavy fees payable when they applied to bring land under the Act. The owner had his title converted without expense, except a small charge for the new certificate.
But what was to happen if the existing title was page 226defective? Under existing practice, land could not be brought under the Act until all defects had been cleared off.
Bell's legislation at first allowed any such defects to be noted on the certificate of title, and provided that after the expiry of twelve years these defects would disappear automatically, and a title free from all possible challenge would issue to the holder. Objection was raised that if the public had access to the record of defects this might lead to the levying of blackmail. The Bill was therefore amended so that no one but the owner could inspect the record of defects unless authorized by the Supreme Court. But the greatest difficulty of all was that of survey. For under the existing system no certificate could issue without a complete survey of boundaries by an authorized surveyor. To avoid this expense to the owner, Bell provided that the certificate should issue with the boundaries shown on the deeds, but that these would not be conclusive till the survey was made. However, the experts were of the opinion that, as each time land was subdivided a survey was needed for the new certificates, it would not be long before most boundaries would be properly fixed.
Finding that the Registrar-General of Lands, Mr. Nalder, was entirely in favour of his proposals, Bell authorized him to draw the Bill—indeed he declared that the Registrar was the only person in New Zealand competent to do so, and he bestowed on that officer the most generous praise for the skill with which he carried out the plan.
The enactment of this beneficial reform for the simplification and cheapening of titles to land affords page 227another example of the great benefit that accrued to the people of New Zealand from having in their service a legislator so original and far-sighted as Sir Francis Bell.
"The Land Transfer (Amendment) Act," he said, "which has the effect of making all defective titles good, is the triumph not only of last session but also of the long life of Sir Francis Bell, who years ago sacrificed his opportunities of occupying the honourable position of a Judge of the Supreme Court in order to better serve the country. I am glad that his life has been crowned by the passing of an Act which has done more for the Dominion than any Act passed during the last fifty years."