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Law 2011 Unregistered Land Handout
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LAND LAW22-23
Lectures 4 & 5 Handout
Unregistered Land
Greg Allan
Associate Professor in Property Law
Gregory.allan@durham.ac.uk
Unregistered Land
,1. LEARNING OBJECTIVES (SLIDE 2)
(1) To understand what unregistered land actually is (as compared to registered land)
(2) To understand how unregistered land or ‘title deeds conveyancing’ works
(3) To understand and critique the enforceability of third-party rights in unregistered land
2. READING
Essential Textbook Reading
Bevan, Land Law (3rd Edn, 2022), Chapter 3
Essential Article Reading (Optional) Reading
M. Thompson, ‘The Purchaser as Private Detective’ [1986] Conv 283 – available via
Westlaw.
Further (Optional) Reading
J. Howell, ‘The Doctrine of Notice: An Historical Perspective’ [1997] Conv 431 – available
via Westlaw.
S. Nield, ‘Imputed Notice’ [2000] Conv 196 – available via Westlaw.
M. Thompson, ‘Midland Bank v Green (1980): Maintaining the Integrity of Registration
Systems’ in N. Gravells (ed.), Landmark Cases in Land Law (Oxford: Hart, 2013) –
electronic copy available via Durham Law Library online.
3. WHAT IS UNREGISTERED LAND & WHY DO WE STUDY IT? (SLIDES 3-11)
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Greg Allan & Chris Bevan 2021-22 ©
,We explored unregistered and registered land in outline in our first lecture. Let’s
recap by first considering a central question:
What actually is unregistered land? (slides 3-4)
When we speak of ‘unregistered land,’ we are referring to land whose title
(freehold or leasehold) is not recorded on the register held and managed by
Land Registry. If land is registered land, this means that title to the land has
been registered according to the land registration system that is maintained
by Land Registry. The register of title for each registered estate provides proof
of ownership, and aims to provide a complete picture of the third party rights
that affect the land.
Unregistered land is land for which there is no register of title- it falls outside
of the registration system. This means that proving who owns unregistered
land is done in the old-fashioned way (i.e. the way before land registration);
namely by investigating the conveyancing history of the land – physical, paper
documents. These documents include bundles of papers, deeds and other
instruments which provide an account, a history of the land. Locating and
searching through these documents can be time-consuming, dirty, and risky.
Imagine what could happen as a result of a lacklustre or incomplete search of
these paper documents resulting in you purchasing land without realising
exactly what you have acquired?
Dealings with unregistered land are known as ‘title deeds conveyancing’ and
involve physical inspection of deed etc. are therefore quite different from the
ease and relative simplicity of searching the electronic register (as happens in
registered land).
The system of unregistered land operates entirely separately from the system
of registered land that we will explore in subsequent lectures. While both
systems deal with the same rights in land (freehold, leasehold, easements
etc.) and they both share a concept known as ‘overreaching’, there are major
differences. You must therefore keep unregistered and registered land quite
apart in your minds and avoid confusing the two!
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Greg Allan & Chris Bevan 2021-22 ©
, Why do we have registered and unregistered land? Defects in the ‘old law’ and
the ‘1925 legislation’ (slides 5-10)
Although you may find this difficult to believe, the registered and
unregistered land regimes were born out of an attempt to simplify
conveyancing.
To understand this, we need to summarise the law prior to the ‘1925
legislation’, and the aims of the 1925 legislation.
For a very long time, a deed has been necessary to transfer legal title to
freehold estates in land. The ‘title deeds’ to an estate in land have long been
used to provide proof of ownership of land, as they can be used to trace
changes in ownership of the estate from previous owners up to the present
owner.
The title deeds also contained information pertaining to third party interests
that had been granted over that estate (e.g. grants of easements, restrictive
covenants and mortgages, declarations of trust). Note, however, that the title
deeds did not necessarily provide a complete record of all third party interests
that could bind the purchaser
A potential purchaser of land (or a mortgagee, meaning a secured lender)
would consult the title deeds to obtain proof that the seller had good title
(that could duly be transferred to the purchaser). The title deeds might also
reveal to the purchaser third party interests that might be binding upon him
if he went ahead with the purchase.
o Recall that some interests in land can exist as legal or equitable
interests, and some as equitable interests only.
There were separate rules to determine whether legal and equitable interests
would bind a purchaser (slides 6-7):
o LEGAL RIGHTS: bound the whole world. This meant that any person
who acquired title to land would be bound by all third party legal rights
affecting that land, irrespective of whether or not she knew about
those interests.
o EQUITABLE RIGHTS: were subject to the doctrine of notice. This meant
that equitable rights bound the whole world except for ‘equity’s
darling’. Equity’s darling is the bona fide purchaser for value of the legal
estate without notice. We will explore this concept in detail below (p
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Greg Allan & Chris Bevan 2021-22 ©
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