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Gently Reforming Land Registration: The Latest Law Commission Report and Draft Bill

Published online by Cambridge University Press:  16 January 2009

Louise Tee
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Extract

Land registration has long proved a source of concern to the Law Commission. Its Third Report in 1987 recommended significant changes to the substantive law; its Fourth Report subsequently incorporated these changes into a comprehensive draft Land Registration Bill which was intended to replace the Land Registration Act 1925 with a modern, simpler statute.

Type
Shorter Articles
Information
The Cambridge Law Journal , Volume 55 , Issue 2 , July 1996 , pp. 241 - 248
Copyright
Copyright © Cambridge Law Journal and Contributors 1996

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References

1 Law Commission, Property Law: Third Report on Land Registration (Law Com. No. 158, 31 March 1987).

2 Law Commission, Property Law: Fourth Report on Land Registration (Law Com. No. 173, 8 November 1988).

3 Law Com. No. 173, para. 1.2.

4 Law Commission, Transfer of Land: Land Registration. First Report of a Joint Working Group on the Implementation of the Law Commission's Third and Fourth Reports on Land Registration (Law Com. No. 235, 9 August1995).

5 Housing Act 1985, s. 154(1) and (6), s. 171G and Sched. 9A, para. 2.

6 Land Registration Act 1925, s. 123(1).

7 Only on 1 December 1990 did all of England and Wales become subject to compulsory registration (Registration of Title Order 1989, S.I. 1989/1347).

8 By March 1995, over 11 million titles (71% of the total) were computerised: Land Registry Annual Report and Accounts 1994–95, p. 12. Target completion for computerisation is the end of 1998;Google Scholaribid.

9 Completing the Land Register in England and Wales, November 1992.

10 Conveyances giving effect to an appointment of new trustees and conveyances by beneficial owners to nominees: Law Com. No. 235, paras. 2.4–5.

11 Law Com. No. 235, para. 2.5.

12 Law Com. No. 173, draft Bill, cl. 13(5).

13 Law Cora. No. 235, para. 2.8.

14 Law Com. No. 235, para. 3.5 and draft Land Registration Bill, cl. 3, which amends Land Registration Act 1925, s. 145(3).

15 Barnsley, D.G.Compulsory registration of title—the effect of failure to register (1968) 32 Conv. (N.S.) 391.Google Scholar

16 Oddly, the suggested sub-section (5)(b) does not correspondingly state that the legal estate reverts to a grantor upon the disposition purporting to grant a legal estate becoming void. That this must happen is implicit within the provision—the impugned disposition is to take effect as if it were a contract to grant an estate and there is nowhere else for the legal estate to go. So, even though the grantor must now have a determinable estate, and one which is not saved by sub-section (4), it must be legal. This is perhaps rather an oblique way of dealing with the Law of Property Act 1925, s. 1(1)(a), and a clear express provision would have been preferable.

17 Pinekerry Ltd. v. Kenneth Needs (Contractors) Ltd. (1992) 64 P. & C.R. 245.

18 This could only take effect in equity: British Maritime Trust v. Upsons Ltd. [1931] W.N. 7.

19 An unregistered estate contract is void against a purchaser of a legal estate—Land Charges Act 1972, s. 4(6): as against a purchaser of an equitable interest, the contract is valid under the old equitable doctrine that where there are competing and equal equities, the first in time prevails. See McCarthy and Stone Ltd. v. Hodge [1971] 1 W.L.R. 1547.

20 H.M. Land Registry, Practice Leaflet No. 5 (March 1994).

21 See Freer v. Unwins Ltd. [1976] Ch. 288.

22 In the year 1994–5, the Land Registry paid out £1,414,461–77 on 530 claims by way of indemnity; £122,239–90 was recovered under the statutory rights of recourse: Land Registry Annual Report and Accounts 1994–95, p. 19.

23 Land Registration Act 1925, s. 83(5)(a) (as amended by the Land Registration and Land Charges Act 1971, s. 3(1)).

24 In Freer v. Unwins Ltd [1976] Ch. 288, Walton J. refused to allow rectification of the register to affect a subsisting overriding interest. However, this decision may have been per incuriam, in so far as it seems that section 82(2) of the Land Registration Act 1925 was not cited to the court. This section expressly provides that the register may be rectified notwithstanding that the rectification may affect other interests. The decision has been widely criticised, not least by the Law Commission: Law Com. No. 158, para. 3.8.

25 Land Registration Act 1925, s. 83(6)(6).

26 Land Registration Act 1925, s. 83(6)(a). See Epps v. Esso Petroleum Co. Ltd. [1973] 1 W.L.R. 1071 for a full discussion of the way in which the different rules work.

27 Law Com. No. 158, paras 3.31 and 3.32.

28 Supreme Court Act 1981, s. 35A.

29 Law Com. No. 158, para. 4.6.

30 In so far as an indemnity is awarded up to the value of the land at the relevant time, it is arguable that such an approach can already be taken. Land Registration Act 1925, s. 83(6).