Land Assurance Fund Frameworks: An Analytical Study of Relevant Legal Provisions in Malaysia and Australia

Background and Purpose: Registration of title or interest should confer indefeasibility of title to the landowners or interest holders since the fundamental principle of the Torrens system is supposed to guarantee that. Unfortunately, technology and human greed motivate and cause wrongful deprivation of such rights. When this happens, the issue of compensation or remedy will arise. By not adopting the insurance principle as proposed by Sir Robert Torrens, innocent landowners are at risk of being uncompensated. Methodology: This study employs doctrinal legal research. This content legal analysis will study the selected land legislations in New South Wales (Real Property Act 1900 No 25), Victoria (Transfer of Land Act 1958), Queensland (Land Title Act 1994), South Australia (Real Property Act 1886), Western Australia (Transfer of Land Act 1893), Tasmania (Land Titles Act 1980), Northern Territory (Land Titles Act 2000) and Australia Capital Territory (Land Titles Act 1925) on three aspects only. They are about sources of the assurance fund, bases for claim and the limitation period. Findings: An assurance fund exists in all states in Australia, but they bear similarities and differences in their operation and application. As for the sources of fund, some states employ a user-funded scheme, some states use a government-funded approach, and there is also a combination of user and government-funded approach. As for the basis of claim, commonly the law enables claims for the loss that is suffered as a consequence of fraud, and error or mistake of the Registrar. Concerning limitation periods, there are various time limits prescribed by the states, ranging from 6 years, 12 years, 20 years, and to no limit at all. Contributions: Apart from adding to the body of knowledge, this study significantly assist policymakers to draft legal provisions as regards the creation of an assurance fund in Malaysia. Learning from the experience of various states in Australia, this study emphasizes the elements that must be taken into consideration when formulating Malaysian assurance fund.