Page 2252 - Week 07 - Thursday, 23 June 2005

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The commission was also of the view that fundamental review was necessitated by a radical change in patterns of land use caused particularly by the growth of urbanisation. According to the commission, this change led to an increase in conflicts between different land uses, so that more careful planning of use and protection of land resources needs to be considered as part of the law dealing with property.

Of considerable importance, the commission pointed out that the law relating to property in the ACT could not be found in a complete conveyancing act or property act. In the ACT the law relating to conveyancing can be found in the common law, in imperial acts, the Conveyancing and Law of Property Act 1898 New South Wales and a variety of other New South Wales acts which apply in the ACT, some sections of the New South Wales Conveyancing Act 1919, as applied and modified in the ACT by the Conveyancing Act 1951, the Law of Property (Miscellaneous Provisions) Act 1958 and the Trustee Act 1957.

This situation, according to the commission, urgently needed modification and simplification. The commission felt, however, that it was not in a position to be able to undertake the complete revision of the law relating to property in the ACT, undertaking instead a more limited review designed to remove anomalies, clarify sections and limit, as far as possible, the number of steps required to be taken to effect a conveyance of land in the ACT.

The program examined the old ACT law relating to the law of property. While for many centuries this law covered the acquisition of interests in land and goods, it has been largely overtaken by modern legislation. The sale of land is now regulated under the Land Titles Act 1925 and the sale of goods is regulated by sale of goods and fair trading laws. The review only tangentially examines the modern legislation. It is a housekeeping exercise aimed at discovering and making more accessible old rules that might continue to have relevance to legal transactions in the ACT.

It is unwise to attach too great an importance to the old law. But neither should it be underrated. It is a confusing maze of legislation. Much of it is archaic, unintelligible language. For example, until recently is was still the law that “the due registration in the Office of the Registrar-General of any deed of feoffment shall operate as and be for all purposes equivalent to livery of seisin as to the lands and hereditaments comprised in and intended to be conveyed by such deed of feoffment the same in all respects as if there had been livery of seisin actually made and given of the same land and hereditaments in the most valid and effectual form and manner”.

In plain English this simply means, perhaps surprisingly, that a modern transfer of property has the same effect as handing over the ring of the door of the building or, if there is no building, a clod of earth. The underlying basis of many old conveyancing laws is completely alien to modern conceptions and needs. In a period of great personal mobility, geographically, socially and economically, land is fundamentally a place of shelter and, if owned, an investment.

Older conceptions based on archaic feudal and medieval dogma and expressed in quasimagical law-French phraseology are now irrelevant to modern conveyancing transactions. The law reflects the overriding concern of English society, from early

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