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INTRODUCTION
Land lawyers in England and Wales fall into two broad groups. First, there are those who believe that the 1925 property legislation and, specifically the 1925 and 2002 Land Registration Acts (LRA), established new machinery for controlling the creation and transfer of land and interests in land, but did not radically alter the nature of property law. Thus, some textbooks will explain in detail the nature of, say, easements or mortgages, and add a section at the end of each chapter on the implications of āregistered landā. Others take the view that the system of registered conveyancing has produced fundamental changes in the nature of the rights and interests falling within the concept of āland lawā. Thus, on this view, a detailed understanding of the mechanics of registered land is necessary before a student can fully appreciate substantive property concepts such as easements or mortgages. There is, of course, merit in both views, but even without the powerful theoretical arguments that could be used, there are practical advantages for the student in following the second approach and this is the course adopted in this edition of Questions & Answers.
Since 1 December 1990, all of England and Wales has been designated as an area of compulsory registration of title and it is now estimated that over 80 per cent of all potentially registrable titles are in fact registered. In the fullness of time, therefore, unregistered conveyancing will all but disappear from the legal landscape and this process has accelerated since the entry into force of the LRA 2002 on 13 October 2003. In fact, the LRA 2002 operates on the fundamental assumption that registered land is intrinsically different from land of unregistered title. Moreover, and more importantly for students, examiners set problem questions that require students to explain how easements or mortgages, or whatever, operate in registered land and no amount of pre-1925 property law will solve these puzzles. There is, for example, no point in discussing the ādoctrine of noticeā in registered land when it is entirely irrelevant and an answer that includes such a discussion might lead an examiner to conclude that the student fundamentally misunderstands the nature of modern land law.
If a plot of land is described as āregisteredā, this means that ātitleā to it (that is, an estate of freehold, or leasehold of over seven years) is recorded and guaranteed by the Land Registry. In contrast, āunregistered landā is land to which title is not registered but is established by the title deeds of the particular property. Whether title is registered or unregistered depends simply on whether there have been any dealings with the land such as to give rise to an obligation to register (compulsory registration), or whether the āownerā has applied for voluntary first registration of title. As such, there is no magic about land being āregisteredā: it is simply a way of saying that the title is recorded and guaranteed and that dealings with the land fall within the procedures established by the LRA 2002 and the Land Registration Rules 2003 (as amended in 2008 and 2011). When answering problem questions in an examination, one of the first things to establish is whether the land is registered, and normally you will be told. For example, there may be references to the āregistered proprietorā or the landās ātitle numberā. If you are not told, it cannot be important for your answer as there is no way that you can deduce whether title is registered. After all, whether there has been registration of title does not depend on the quality of the land or the interests in it, but whether an event has occurred that has triggered registration of title.
Aim Higher
The system of registered land falls into four parts and a sound knowledge of these distinctions will enhance answers to examination questions.
Registered titles: these are the freehold or legal leasehold over seven years and they are substantively registered in their own right with a title number. Most questions in land law examinations require no more than a basic knowledge of the mechanics of registering or transferring titles and of the different qualities of title with which a person may be registered. A wider knowledge enhances the answer. Of more complexity are the rules relating to the transfer and creation of interests in the land such as easements, mortgages, covenants and shorter-term leases (that is, those that cannot be registered as titles, being currently leases for seven years or less).
Unregistered interests which override (also known as overriding interests): these are interests in the land that will have automatic priority over a registered proprietor (such as a new purchaser of the land). They do not have to be registered anywhere to take effect against the registered proprietor. They are defined in Sched 1 to the 2002 Act in relation to first registered proprietors and in Sched 3 in relation to purchasers of an existing registered title (although the Schedules are broadly very similar). In substance, these unregistered interests which override are inherently proprietary (i.e. capable of binding third parties), although some are legal and some are equitable. No student should attempt a land law paper without a thorough understanding of overriding interests and an ability to use the statutory Schedules. Being aware of the small differences between the Schedules, and why they exist, will improve an essay question on the 2002 Act in general and overriding interests in particular.
Registered protected interests: these are those interests enjoyed by third parties (i.e. not the registered proprietor) that are entered on the register of title against the burdened land and thus are protected in the event of a transfer of that registered title. If they are not registered, generally they do not have priority over a purchaser, unless the right falls (fortuitously) into the category of overriding interest. The ādoctrine of noticeā is entirely irrelevant in this regard and talking about it in a registered land question will create a poor impression. In essence, under the LRA 2002, this class of interest is meant to comprise the great majority of third party rights in land, the point being that as much as possible about the registered title should be clear from the register of title itself. Examples include easements, covenants, options to purchase and shorter leases.
Registrable charges: these are essentially mortgages. They, too, must be registered to take effect as legal mortgages (otherwise they may be equitable) and are considered in more detail in the chapter on mortgages. Sometimes an examiner will leave doubt about whether the mortgage is legal or equitable as this may affect remedies and so understanding this distinction can add marks.
QUESTION 1
āThe primary reasons for the introduction of a land registration system in England and Wales were realised by the Land Registration Act 1925. That system was not perfect, but it has been enhanced by the entry into force of the Land Registration Act 2002.ā
ā Discuss.
How to Read this Question
The examiner here is looking for you to go beyond basic description of the LRA 2002, but instead to analyse the Actās relationship with its aims and with the aims of the 1925 property legislation.
How to Answer this Question
Pre-1925 problems ā briefly.
The mechanics and principles of land registration, including the priority rules (
s 28 and
s 29 LRA 2002).
Titles and the mirror principle.
Trusts and the curtain principle.
The role of unregistered interests which override.
The role of registered protected interests.
Some problems and solutions: undiscoverable but binding interests and the changes made by
LRA 2002; protecting the purchaser or the occupier?; the nature of the guarantee of title embodied in
s 58; and
Scheds 4 and
8.
Up for Debate
The nature of the guarantee of title in s 58 is a matter of some debate. The decisions in Parshall v Hackney (2013), Richall v Fitzwilliam (2013), Swift 1st Ltd v Chief Land Registrar (2014) and the series of cases surrounding Barclays Bank v Guy (No 1) (2008) have been the subject of much academic commentary. The meaning of āmistakeā in Sched 4 is critical to the determination of these issues. The approach to rectification in Baxter v Mannion (2011) an...
