Lecture Notes Land Registration PDF

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lectures notes for land registration. used for exam preparation and revision, but not my final notes....

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LAND REGISTRATION M Dixon, Modern Land Law Chapter 2. Or Thompson and George, ch 5. You may also find useful Gray & Gray, Elements of Land Law (5th edn, 2009)1083 – 1156. 1.

Introduction

Beware of out of date books! A short historical introduction to land registration Why do we register land? What are the aims of land registration? Historical Background  Land Registration was first introduced to England and Wales by legislation in 1862…but few titles were registered.  Compulsory registration in London in 1897  Land Registration Act 1925  1 December 1990 - compulsory registration – England and Wales  Now 80-90% (approx.) of land is registered land  Land Registration Act 2002 – came into force 13th October 2003  Law Commission, Updating the Land Registration Act 2002 (Law Com No 380, 2018)

‘The LRA 2002 is not some tidying up measure that merely re-enacts the substance of what was before. It embodies a complete rethink of how a registered conveyancing system should work... Land registration as we have known it in this country has been a rather half-hearted affair. Registration has been widely perceived as a bureaucratic imposition, and its logic has never really been appreciated. This is rather puzzling. A system of title registration should be comprehensive and principled and the new Act seeks to make it so.’ Preface to C. Harpum & J. Bignell, Registered Land - The New Law (Jordan, 2002)

2.

Unregistered land

Unregistered land is being phased out as swiftly as possible. For this reason, this course will focus on registered land. For more detail on unregistered conveyancing, see Dixon, Modern Land Law ch 3. Investigating title to unregistered land Legal and equitable interests in unregistered land Land Charges Act 1972, overreaching and the old doctrine of notice.

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Registered Land a. Land Registration Act 2002

“One of the main objectives of the LRA 2002 is…to define with maximum certainty and accuracy, the consequences of dealings with estates which are registered with the Land Registry” Gray & Gray, Elements of Land Law (5th edn, 2009) 1083 “…to strip away many of the obstacles to the reception of an unencumbered title…and ultimately to equip the registered proprietor with a robust and highly protected form of state guaranteedownership” Gray & Gray, “The rhetoric of realty”, in J Getzer (ed), Rationalising Property, Equity and Trusts: Essays in honour of Edward Burn (2003) 243. 2

Key Objectives and Aims    

Register as much as possible Move towards complete registration Move towards electronic conveyancing Restrict overriding interests

b. The role of the Land Registry  Website: https://www.gov.uk/government/organisations/land-registry Public access to the Register c. The basics of registration of title (i)

The 3 basic principles

The ‘mirror’ principle The ‘curtain’ principle The ‘insurance’ principle d. When to register? (i) (ii) (iii)

Voluntary registration Triggered events that impose a burden to register (s4 LRA 2002) Sanctions for non-registration s7 LRA 2002

-Who applies? -What happens if an application for registration is not made? Roberts v Lawton [2016] UKUT 395 (TCC)

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e. The organisation of the individual register of title Property register Proprietorship register Charges register f. The class of title given to the proprietor (i) (ii) (iii) (iv)

Absolute Good leasehold Qualified Possessory

g. Classification of proprietary interests under the LRA 2002 1. 2. 3. 4.

Substantively registrable interests Registrable charges (Mortgages) Third party rights or minor interests – notices and restrictions Overriding interests h. Third party rights (or minor interests*) that can be protected on the register

* LRA 1925 terminology. Note that academics and scholars continue to use this terminology.

(i)

Examples of the proprietary rights that can be protected in this way

(ii)

Structure of protection

Notices A Notice is the primary method for protecting third party rights in registered land. They are used to protect interests (such as restrictive covenants and easements) which are intended to remain as the land itself changes ownership over time.

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Once entered on the register, a Notice will bind a registered purchaser. Notices are a major part of the strategy of Land Registration. The Land Registration Act 2002 sought to ensure that as many interests in land as possible are entered on the register so that a purchaser knows what they are buying, and rights of nonowners who have interests in land are protected.  The process of entering a notice on the register: Ss 34-39 LRA 2002  The impact of a notice on the transfer of land: Ss 32(3) and Ss 29 and 30 LRA 2002  Exceptions – interests that cannot be protected with a notice: S33 LRA 2002. E.g. interests under trusts, certain short leases. Restrictions S40(1) LRA 2002, ‘A restriction is an entry in the register regulating the circumstances in which a disposition of a registered estate or charge may be the subject of an entry in the register.’  When can a restriction be used? See Law v Haider [2017] UKUT 212 (TCC).  The process of entering a restriction Ss 42-47 LRA 2002 Hallman v Harkins [2019] UKUT 245 (LC)  The effect of a restriction s41 LRA 2002 “Overriding Interests” or interests that override first registration or registered dispositions (i)

The fundamental issue with overriding interests.

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The purchaser / mortgagee is bound by these overriding interests even though they do not and cannot appear on the register. “The principal difficulty posed by overriding interests is that their existence fundamentally distorts the mirror image of the register: the register can no longer be relied upon as a comprehensive record of the totality of interests affecting registered estates.” Gray and Gray, Elements of Land Law (5th edn, 2009) 1105 (ii)

The policy of LRA 2002 and overriding interests. (a)To restrict them as much as possible . Abolition / phasing out of old categories under s70(1) LRA 1925

Note: Manorial Rights no longer overriding interests since 2013 See further: Manorial Rights: Government response to the House of Commons Justice Committee’s Fifth Report of Session 2014-15 (July 2015): Recommendations on the operation of the existing system for registering these rights under the Land Registration Act 2002. (b) Separate provision for overriding interests on first registration (Schedule 1) and on a subsequent registration (Schedule 3) Careful comparison is necessary between those interests which override on first registration (Schedule 1) and those which bind a later purchaser of a legal estate (Schedule 3). (iii)

Principal sub-categories of overriding interests under Schedule 3 LRA 2002 Para 1 Short term leases: Legal leases granted for a term of not more than 7 years Para 2 Interests of person in actual occupation Para 3 Easements and profits a prendre

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Short term leases: Legal leases less than 7 years Schedule 3 para 1 LRA 2002: “A leasehold estate in land granted for a term not exceeding seven years from the date of the grant ...” [but there are exceptions] Link to leases topic. Significance of the word ‘grant’ City PBS v Miller [1952] Ch 840 Barclays Bank v Zaroovabli [1997] 2 All ER 19 Interests of persons in actual occupation Schedule 3 para 2, LRA 2002 No statutory definition of actual occupation. Compare actual occupation under the new law with actual occupation under S. 70, LPA (1)(g) 1925. Schedule 3 para 2 LRA 2002 Interests of persons in actual occupation 2 An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for – (a) An interest under a settlement under the Settled Land Act 1925; (b) An interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) An interest – i. Which belongs to a person whose occupation would not have been obvious on a reasonably careful 7

inspection of the land at the time of the disposition, and ii. Of which the person to whom the disposition is made does not have actual knowledge at that time, (d) A leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at the time of the disposition.’ The interest requirement:  What sort of interests will qualify here? Must be proprietary in nature… (Note case law pre-dating the LRA 2002) National Provincial Bank v Ainsworth [1965] AC 1175 **Williams & Glyn’s Bank v Boland [1980] 3 WLR 139 **City of London BS v Flegg [1988] AC 58 Examples and exceptions: Mortgage Express v Lambert [2016] EWCA Civ 555 Grace Rymer Investments Ltd v Waite [1958] Ch 831 Webb v Pollmount [1966] Ch 584 Ashburn Anstalt v Arnold [1989] Ch 1 Woolwich BS v Dickman [1996] 3 All ER 204 Barclays Bank plc v Zaroovabli [1997] 2 WLR 729 Family Law Act 1996 s31(10) (b) (as amended by LRA 2002, s133, schedule 11, para 34(1)-(2)) The actual occupation requirement: *Hodgson v Marks [1971] 1 Ch 45 **Williams and Glyn’s Bank v Boland [1980] 3 WLR 139 *Abbey National BS v Cann [1991] AC 56 *Link Lending v Bustard [2010] EWCA Civ 424 For a helpful summary, see Baker v Craggs [2016] EWHC 3250 (Ch) 8

Agents in occupation: *Abbey National BS v Cann [1991] AC 56 Lloyd v Dugdale [2002] 2 P&CR 13 Credit and Mercantile Plc v Kaymuu Ltd [2015] EWCA Civ 655 Furniture: Strand Securities v Caswell (1965) Link Lending v Bustard [2010] EWCA Civ 424 Preparation for future return : *Abbey National BS v Cann [1991] AC 56 Lloyds Bank v Rosset [1989] Ch 350, CA Absences/Intention to return: *Chhokar v Chhokar [1984] FLR 313 *Thompson v Foy [2009] EWHC 1076 *Link Lending v Bustard [2010] EWCA Civ 424 Date of actual occupation? Exceptions in Schedule 3 para 2: (b) for enquiry (c) for discoverability and (d) for reversionary leases Contrast with equivalent provisions under the old law s70(1)(g) LRA 1925 Easements and profits a prendre Schedule 3 para 3 LRA 2002 ‘Easements and profits a prendre

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3-(1) A legal easement or profit a prendre, except for an easement, or a profit a prendre which is not registered under Part 1 of Commons Act 2006, which at the time of the disposition(a) Is not within the actual knowledge of the person to whom the disposition is made, and (b) Would not have been obvious on a reasonably careful inspection of the land over which the easement or profit is exercisable. (2) The exception in sub-paragraph (1) does not apply if the person entitled to the easement or profit proves that it has been exercised in the period of one year ending with the day of the disposition.’ What sort of easements will qualify here post 2003? Transitional arrangements for easements created prior to LRA 2002 S134 (2), Schedule 12 para 9(1)-(2) i. Alteration of the Register and Indemnity    

Insurance/ Indemnity principle Alteration Rectification Indemnity

Swift 1st Ltd v Chief Land Registrar [2015] EWCA Civ 330 NRAM Ltd v Evans [2017] EWCA Civ 1013 Reading ** Land Registry Website: https://www.gov.uk/government/organisations/land-registry Please see the Land Registry Website for very helpful practice guides, statistics and land registration news.

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Further Reading: The Land Registration Act 2002 Law Commission, Updating the Land Registration Act 2002 (Law Com No 380, 2018) A Goymour, S Watterson, M Dixon (eds), New Perspectives on Land Registration: Contemporary Problems and Solutions (Hart Publishing, 2018) N Hopkins and J Griffin, “Updating the Land Registration Act 2002” (2018) 3 Conv. 207 M Dixon, “The registration gap and overreaching” (2017) 1 Conv. 1 *M. Dixon, ‘Land Registration and Time Travel: reforming the land registry’ [2014] 78 Conv. 189 S Gardner, “The Land Registration Act 2002 – the Show on the Road” (2014) 77(5) Modern Law Review 763 M Dixon, “The past, the present, and the future of land registration” (2013) 6 Conv. 463 The Register’s Guarantee of Title and Rectifying the Register C Pulman, “Adverse possession by a registered proprietor and its implications for rectification” (2019) 2 Conv. 175 S Cooper, “Discretion in property law: a study of judicial correction of registered title” (2018) 38 Legal Studies 1 M Dixon, “Updating the Land Registration Act 2002: title guarantee, rectification and indefeasibility” (2016) 6 Conv. 423 M Dixon, “Rectifying the register under the LRA 2002: the Malory 2 non-problem” (2016) 5 Conv. 382

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S Cooper, “Resolving Title Conflicts in Registered Land” (2015) 131 LQR 108 A Goymour, “Resolving the tension between the Land Registration Act 2002's "priority" and "alteration" provisions: Gold Harp Properties Ltd v MacLeod [2014] EWCA Civ 1084; [2015] 1 W.L.R. 1249” (2015) 3 Conv. 253 E Cooke, “Case Comment: The register's guarantee of title -Fitzwilliam v Richall Holdings Services Ltd [2013] EWHC 86 (Ch); [2013] 1 P. & C.R. 19.” (2013) 4 Conv. 344 Overriding Interests G Owen “Priorities and registered land during the registration gap Baker v Craggs [2016] EWHC 3250 (Ch)” (2017) 3 Conv. 230 M Dixon, “A tangled web of priority” (2015) 2 Conv. 97 C Jessel, “Statutory easements and land registration” (2015) 4 Conv. 324 T Troman, “Manorial rights: outdated relic or worth the fight?” (2015) 6 Journal of Planning and Environmental Law 644 *B Bogusz, “The relevance of “intentions and wishes” to determine actual occupation: a sea change in judicial thinking?” (2014) 1 Conv. 27 B Bogusz, “Defining the scope of actual occupation under the LRA 2002: some recent judicial clarification” (2011) Conv. 268

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