Law Times

Law Times • December 4, 2017 Page 7 www.lawtimesnews.com And then there were eight: Torrens in the U.S.A. BY JEFFREY LEM L aw Times readers would be forgiv- en for not appreciating the nuances of the passage of Colorado Senate Bill 17-140, which is set to come into force on Jan. 1, 2018. Bill 17-140 represents a significant trend in U.S. real estate law that, oddly enough, runs completely con- trary to competing trends in Canada and, indeed, in much of the rest of the world. Broadly speaking, the real estate world can be divided into two general jurispru- dential land registration camps. There are the older, marketability-of-title systems where the state provides a repository for title documents and citizens rely on their search of that repository. There are also the Torrens systems where the state guaran- tees a "snapshot" of title at any given time. Ontario has historically been organized under both systems — a Torrens regime under the Land Titles Act and a market- ability-of-title regime under the Registry Act. In the 1990s and the first decade of the 21 st century, Ontario modernized its real estate registration systems by convert- ing almost all of its former marketability- of-title titles into Torrens titles. As a result, Ontario today is, for most intents and pur- poses, a pure Torrens jurisdiction, with 99.5 per cent of its six million-plus parcels of patented land governed by the Land Titles Act and a mere 0.5 per cent of such parcels remaining under the legacy Regis- try Act. This conversion project left Ontario consistent with most of the rest of Canada. Most other provinces and territories have always been Torrens or have recently converted (or are currently in the process of converting) from marketability-of-title to Torrens, with only Que- bec, Prince Edward Island and Newfoundland still under marketability-of-title regimes with no immediate plans to convert to Torrens. This trend toward Torrens titles is consistent with almost all of the rest of the Commonwealth and a number of other non-Commonwealth countries such as Thailand, Malaysia and the Phil- ippines. A hybridized version of Torrens is also common throughout Africa. Contrast this trend toward Torrens title with the plight of Torrens title in the United States. Land registration systems in the U.S. are quite varied, and they typi- cally take on the characteristics of the land registration systems of the sovereign states from whom the land was acquired. So, for instance, land registration throughout most of the Thirteen Colonies looks pre- dominantly like English land registration at the time. Likewise, land registration throughout Louisiana and parts of the Mississippi basin up through Ohio looks quite French, and land registration in the south and west has features reminiscent of Spanish land registration. Regardless of the f lavour of the relevant land registra- tion system in the U.S., it is fair to say that they were, circa the mid-19th century, all variations of mar- ketability-of-title. When Sir Robert Torrens created his then-revolutionary method of state-backed title in 1858, it spread quickly to North America. Within a few decades after its implemen- tation by Torrens in South Australia, already 21 Ameri- can states (and much of what was or soon would be part of Canada) had adopted Torrens title. This was not, however, to stick in the U.S. Rather than growing in popularity, the rapid introduc- tion of Torrens to the U.S. was followed by an almost equally rapid decline in the popu- larity of Torrens title. California's story is typical of the rise and fall of Torrens title in the U.S.. Al- though a Torrens statute passed the state legislature in 1897, not a single title was converted from marketability-of-title re- gime to the Torrens regime until 1908, so unpopular was the new (and still optional) method of registering land. A revised and somewhat improved version of the Cali- fornia Torrens statute was passed in 1915, but Torrens title continued to wither on the vine. Torrens title became particu- larly unattractive after a US$47,000 claim against the assurance fund (a large sum for the times) in 1937 essentially bankrupted the system. Whatever the reasons for the failure of Torrens title in that state, Cali- fornia finally repealed Torrens altogether in 1955. At the time of its ultimate demise, only 21 California counties had any Tor- rens titles at all, with 37 counties never having had a single property converted to Torrens in the almost six decades that Tor- rens was available. The same rapid adoption and eventual repeal occurred in several U.S. states. Fast- forward to today and we see only nine states that still have any vestige of Torrens legislation left: Hawaii, Washington, Col- orado, Minnesota, Massachusetts, Ohio, Georgia, North Carolina and New York. Even this roll call is somewhat mis- leading. Of the nine states that do allow Torrens title, only Massachusetts and Hawaii use Torrens relatively uniformly throughout the state. All other Torrens- capable states see only selective adoption of Torrens, county by county, within the state. This brings us back to Colorado Senate Bill 17-140. Come Jan. 1, 2018, Colorado will join the dozen American states that initially adopted Torrens but have since re- pealed the legislation. Colorado adopted a Torrens statute in 1903 and Colorado Sen- ate Bill 17-140 puts the last nail in that cof- fin — an interesting observation for those in the rest of the world outside of the U.S. that are part of the growing trend away from marketability-of-title toward more universal Torrens title. LT uJeffrey Lem is the director of titles for the province of Ontario. This article ref lects the personal views of the author alone. Time for graduated licensing for lawyers BY RYAN HANDLARSKI G raduated licensing for drivers in Ontario started in 1994. At the time it was intro- duced, it was touted that the policy was going to save tens of millions of dollars in accident prevention and lives. The policy is very easy to understand and so intuitively and obviously correct that it really requires no justification. It is apparent why 16-year-olds with no driving experience should not be permitted to drive by themselves before getting some experience on the road with an experienced driver. In the same vein, a freshly minted lawyer from law school should not handle a murder trial or, for that matter, any trial with any degree of complexity. Neither should a lawyer that has been practising principally real estate law for 10 years while dabbling in criminal law handle a criminal matter. It is my contention that any Ontario citizen without a law degree would be shocked to know that there is absolutely nothing to stop a freshly minted graduate or real estate lawyer from defending an accused charged with murder. This situation is much more dangerous than a 16-year-old driver and needs to be addressed immediately. Criminal defence is perhaps the most unique area of practice because we have, respectfully submitted, with by far the best barristers and also the worst. The amount of time we spend doing trials ensures that we have titans of the defence bar, but the low barriers to entry ensure we also have some of the worst lawyers, people that have no business defending a criminal case and making de- cisions that ultimately impact someone's liberty and reputation, handling these cases. This matters to the public for a simple reason that is easier to demonstrate by using an analogy to the med- ical profession. In the medical profession, a person that has a heart condition will find their way to a cardiolo- gist. A general practitioner, for example, will immedi- ately recognize that a person with a heart condition should be sent to a specialist and refer the matter to the appropriate doctor. In law, this is not the case because of a false 18 th -century notion that pervades our profession that being a lawyer is some kind of meaningful title in and of itself. It is not. A "lawyer" is an almost meaning- less term. Today, a "lawyer" is as much a meaningful title as the term "athlete." It is an achievement to be an ath- lete, but in order to determine whether I want to watch you play and follow your career, I need to know what sport you play. Are you a sprinter? A boxer? A table ten- nis player? Without knowing the sport you play, "ath- lete" is a term devoid of meaning and context. I need to know the league in which you play. Are you in the North American professional leagues? The European professional leagues? The minor leagues? This is the bare minimum of information that is required to give meaningful context to the term "athlete." The problem for accused persons facing criminal charges and others searching for a lawyer is that they have very few means to separate those that are devoted to a particular area of law and those that are not. They also have very few means to separate the inexperienced law- yers that never run complex trials from the experienced ones that do. Virtually every criminal defence lawyer has a website and puts up an impressive self-authored bio page. Lawyers that practise various areas of law do the same. Clients do not know how to drill down on the information presented by asking relatively simple ques- tions (have you run a jury trial is one that I am often surprised at the answer, for example) and have to rely on criteria other than experience to make the decision of whom to hire. The end result for an accused person is that they can be facing the prospect of losing their liberty for years while being represented by a criminal lawyer with no relevant criminal law experience. Most of us in criminal defence have seen this situation with some regularity. The solution to this problem is to introduce a gradu- ated licensing system that will finally recognize that, though we are all lawyers, our areas of practice are com- pletely different professions with virtually no overlap and that, within the disciplines, there are significant differences in the types of practice and levels of experi- ence. There is as much overlap between the practice of criminal defence and corporate law as there is be- tween table tennis and boxing. There is also as much difference between a criminal lawyer that does principally homicide jury trials and a criminal lawyer that does principally guilty pleas as there is between an NHL hockey player and one that is playing Junior A. The system could be as simple as recognizing three tiers — L1, L2 and L3 — in addition to the certified specialist designation that already exists. The three different tiers would ref lect different lev- els of experience within the different areas that the law society could easily drill down on by asking some sim- ple questions. A criminal lawyer that does principally guilty pleas would be recognized as an L1, as would a lawyer that practises mostly real estate law and dabbles in criminal law. A graduated licensing system protects clients from relying on potentially misleading informa- tion and will finally allow them to meaningfully under- stand and make an informed decision about whom to hire to defend their case. For many of them, this is the most important decision that they will ever make. Right now, those tools are being denied the public for a reason that has its roots in the 18 th century. This model could and should be implemented across all streams of law, but, in criminal law, it is an absolute must because of the lack of barriers to entry into the profession and the number of dangerously inexperi- enced criminal lawyers. Ask any Crown or defence law- yer about the range of advocacy in a courtroom and it is frightening. Every injustice of a rushed or ill-considered guilty plea or an evidentiary application not brought or a de- fence not raised should be thought of as an accident that is largely preventable just like a car accident caused by an inexperienced 16-year-old driving on the highway the day of passing a test. It is high time the Law Society of Upper Canada recognized this and did something about it. Graduated licensing is the way to do it. LT uRyan Handlarski is a criminal defence lawyer in Toronto. He can be reached at 416-837-3500 or ryan@rhcriminaldefence.com. u SPEAKER'S CORNER COMMENT The Dirt Je rey W. Lem Je rey W. Lem

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