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McFarlane, Hopkins & Nield: Land Law Text, Cases & Materials

Chapter 09

The operation of indefeasibility of title, considered in part 5.6, is examined by O’Connor “Deferred and Immediate Indefeasibility: Bijural Ambiguity in Registered Land Title Systems” (2009) 13 Edin LR 194.  O’Connor argues that the problem underlying tensions as to the approach to take to indefeasibility is “bijural ambiguity”.  This expression captures a situation that arises where: (1) the affirmative warranty of title provided by registration conflicts with general rules of property law under which title would not pass (for example, through forgery); and (2) statute does not indicate which view should prevail.  O’Connor examines how bijural ambiguity has arisen and been determined in a number of jurisdictions, including England, Australia and New Zealand.

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