The effect of indefeasibility and error correction on the registration process

Conventional wisdom indicates that there are two forms of register: a Register of Title and a Register of Deeds. However, we agree with Zevenbergen & Ploeger (2019, p. 7) when they state that in reality most systems are neither purely deeds or Title based and lie on a spectrum between the two poles. As binary concepts, the terms Title and Deed register are poorly suited at representing the reality of this spectrum. We recognise that registers have a need to represent both state and state change, and would argue that a Registrars stance on indefeasibility and error correction is a more nuanced way to both classify and understand registration systems. We argue that the issue is not about whether a jurisdication operates a Deed register or a Title register, rather, we hypothesise that the critical issue is where a jurisdiction places good root of Title: the point in the chain of deeds between the original grant and the current transaction at which the jurisdication deems the rights to be indefeasible. We have called this the point of indefeasibility. Any errors in the deeds prior to the point of indefeasibility are termed register errors and as such can not be corrected. Any errors after the point of indefeasibility are termed transactional errors and as such can be corrected under the general law of property. Traditional Registers of Deeds place the point of indefeasibility at the original grant. This means the whole chain of deeds must be verified for every transaction. This is a costly overhead. Registers of Title place the point of indefeasibility at the last transaction, the opposite end of the spectrum. This severely limits the ability to correct errors. Hence, Registers of Deeds and Registers of Title represent poles on a spectrum of indefeasibility. Based on its own needs a jurisdiction can choose where to place the point of good root of title in the deeds sequence. This produces a hybrid approach which requires elements of both deed and title registers. This i