(Student achieved 72% (a first) overall in this Land Law module.) Written from an in-depth lecture from Learning Cycle 8, these clear and concise notes map out some of the advanced issues that arise within land registration. It begins talking about land registration in general, before looking at ho...
LEARNING CYCLE 8 – ADVANCED ISSUES IN LAND REGISTRATION
Lecture: ADVANCED ISSUES IN LAND REGISTRATION
The great scheme of land registration – designed to make land alienable and transactions
secure so that buyers aren’t bound by third-party interests, of which they’d have been
unaware – has been bolstered by courts’ decisions to make it more workable; we’ll look at
four ways that this has happened in this lecture.
Something to watch out for in this LC is the ways in which the courts look to do this:
for example, it might be said that what courts are most concerned about is not
protecting the interests of the third party or even the owner; but protecting lenders,
because they make land law possible by facilitating the buying and selling of land.
First, we need to remind ourselves about land registration and what it was for.
Remembering Land Registration
Land registration is the fulcrum for land law, balancing everything else.
It tells you what rights are going to bind third parties: the essence of land law.
It does this by a singular achievement (we’ll discuss later).
It’s a SHIFT from a system in unregistered land that was possession-based.
Previously, if you could prove you had been in possession of the land for the
requisite period, then it was assumed that you were the owner of the land- who had
the better right to possession? (not the best right).
Land registration completely changed this: we can now say who has the BEST right
to the land, because that would be the registered proprietor (s.58, conclusiveness
of the register)- this is done through a transparent, open register of proprietors and
third-party interests affecting the land.
This is how we obtain CERTAINTY: certainty through registration of ownership.
That provides, in itself, its own scheme/system for the durability of property rights.
, PRINCIPLES of Land Registration
1) The register is a mirror of all the interests in the land.
2) Some interests are curtained off from the land register (particularly interests behind
trusts of land, as these are over-reachable).
3) The state guarantees/insures the register (so we can say the register is conclusive).
The interesting thing is that these principles are in tension with each other (often
exemplified by overriding interests): you can see these tensions operating, for example, in
Williams & Glyn’s Bank v Boland (1980).
Although some might say that this tension is potentially productive, in the sense that
at least we have an understanding of the kind of issues which may arise in practice.
1. From Possession to OWNERSHIP (LEGISLATIVELY Bolstering Land Registration)
So land registration is a system which moves from possession to ownership- the basis of
unregistered title to land was possession.
As a result of this transition, the question arises: what is the role for ‘adverse
possession’ in a system of land registration? (for adverse possession, we commonly
talk about squatters; although this expression is problematic when talking about
most cases dealing with adverse possession).
In a system of title to land based on possession, one needs adverse possession in order to
make good title to land.
What this means is that, if title to land is based on possession, if you can show
possession of the land for a relevant period (used to be 12 years under the
Limitation Act 1980) – whether you’re a squatter or otherwise – then we assume
that you have title to the land (which could be sold).
This was a good way of limiting how long you had to show that you’d been in
possession of the land, because if we didn’t have adverse possession then you’d
have to show that you and your ancestors had possession of the land since 1066
(would’ve been a bit of a problem!)- so adverse possession had a significant role in
unregistered land.
If we then move to a system of ownership – in which possession is not relevant – where we
determine who has the best right to land (i.e., the registered proprietor), the role of adverse
possession become very marginal (that’s how LRA 2002 has come to frame adverse
possession).
There are spectacular acts by which people possess very expensive buildings for (now) 10
years (e.g., the students occupying the Great Hall in the Wills Memorial Building in protest
are potentially in adverse possession of the Great Hall if they were to possess it for the
requisite period- assuming it was unregistered land, they would get title).
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