(Student achieved 72% (a first) overall in this Land Law module.) This document covers land registration (Learning Cycle 3) from its history to the state of the law today, using all the statute and case law relevant to the topic. Seminar notes are also included for extra clarification on the issues...
Preliminaries
In this unit, we presume all land is already registered land.
-Don’t need to worry about provisions in Land Registration Act 2002 regarding first
registration.
-Don’t get side-tracked into unregistered land/systems of land charges (different
system from land registration).
Durability- rights in land potentially have effects on (i.e., bind or take effect in
priority over) third parties.
-‘Third parties’= buyers and lenders.
-The scheme of land registration tells you which rights do bind third parties and
which rights don’t; not all rights in land have that effect (seen in flow chart).
Why Land Registration?
We need a scheme of durability (i.e., which explains to us what rights are going to
bind buyers- ‘certainty’ is an objective for land lawyers) which ensures that land law
rights bind third parties but not in every circumstance.
The standard story:
-The old system of unregistered land was problematic in the early to mid-19 th C
because it became too uncertain.
-The system of conveyancing and knowing what rights bind you were paper-based:
conveyances were large documents, and there were a lot of them in early to mid-
19th C in relation to each parcel of land, which meant it was difficult to find out which
rights bound you.
-The system was based on a simple dyad: if there was a legal right, the legal right
bound all future purchasers; if there was a right recognised in equity, it would only
bind somebody who was a bona fide (‘in good faith’) purchaser of a legal estate for
value without notice- person was called ‘equity’s darling’ and it was based on the
doctrine of notice
-which said that if, as a buyer, you actually knew about adverse rights, you
ought to have known about them (known as constructive notice); or if your
agent (e.g., solicitor) actually knew/ought to have known about the adverse
rights, in all cases you would be bound by them.
-This knowledge-based system became very problematic in context of massive
papers and uncertainty as to who was possessing land.
-This uncertainty in the scheme gave rise to transactional insecurity.
, -“Above all, the [land registration] system is designed to free the purchaser from the
hazards of notice - real or constructive - which, in the case of unregistered land,
involved him in enquiries, often quite elaborate, failing which he might be bound by
equities.” Lord Wilberforce, Williams & Glyns Bank Ltd v Boland [1981] AC 487
-So the standard story is that land registration was required to get rid of the
transactional insecurity that permeated the unregistered land scheme.
The alternative story:
-Land registration comes about as a weave of ideas about property (not just in land
but in persons), colonial ways of thinking and governing , ownership and
detachment.
How Does Land Registration Work?
There are three principles:
1) MIRROR – the land register is an accurate reflection of the ownership of relevant
estates and interests in land (i.e., each bit of land has its own register and each
interest and estate has its own subpart).
2) CURTAIN – certain interests are ‘curtained off’ the register; the most important
interest excluded is the beneficial interest behind trust of land.
3) INSURANCE – if the register is wrong in some way, the state provides insurance
(i.e., the state indemnifies the register- sometimes referred to as the indemnity
principle).
Most interested in the interaction between ‘mirror’ and ‘curtain’ principle.
There is a central land register for ALL legal estates and legal interests in land, EXCEPT
leases of <7yrs (in order for them to be regarded as legal, they must be registered).
-So the register tells us who owns what in respect of each individual parcel of land.
Land Registration Act essentially divides all types of interests into three categories:
REGISTRABLE interests:
-Freehold, leasehold for more than 7yrs, easement (created properly at law).
-Only when they are registered do they become legal.
MINOR interests:
-Refers to everything else (with some exceptions).
-Required to be protected in some way usually by entry on register.
-Two types of entry: a notice and a restriction (i.e., both are a form of words which
appear on register).
-Once you have protected your minor interest by entering notice/restriction on
register, it binds all subsequent buyers and lenders.
OVERRIDING interests:
-Specific interests mentioned in Schedule 3 to the Land Registration Act 2002.
ALL property rights fit into this scheme- they are non-inclusive.
, -e.g., If you have a registrable interest which you DON’T register (e.g., 15 year lease created
properly by deed), then it is a minor interest which can be protected as such; if you don’t
protect it as a minor interest, it may be an overriding interest.
Registrable Interests
Freehold and leasehold interests of >7yrs.
Provided it was created by deed/transfer- duty to apply for registration within two
months (contained in Section 6 of LRA 2002).
Only becomes legal on registration (or application for registration).
Register is conclusive (i.e., once somebody appears as a registered proprietor of an
interest, it binds the world in land law).
A SYSTEM BASED ON OWNERSHIP (as opposed to the unregistered scheme which was
based on possession)- we now know who has the best right to the estate and/or
interest.
Minor Interests
Basically, all other rights in land.
What should you do with your interest? Protect it by entering a notice/restriction.
However, short lease (for < 3yrs), or beneficial interest behind trust of land
(‘curtain’ principle) CANNOT be protected by a notice; you protect your beneficial
interest by entering a restriction which tells buyer what they have to do to
overreach the beneficial interest.
The effect of an entry of a notice on register is that it binds all subsequent third
party buyers/lenders (so once you’ve protected your minor interest by entering a
notice, it will bind third party straight away).
Overriding Interests
A list in LRA 2002, Sch 3.
Three types (for our purposes):
-LEGAL leasehold for less than 7yrs (para 1 in Sch 3).
-Rights of those in ACTUAL OCCUPATION (i.e., any right in land which is coupled
with the person holding that right being in actual occupation of the land) (para 2 in
Sch 2).
-Certain implied legal easements (see LC7) (para 3 in Sch 3).
Overriding interests do not appear on the register, but bind subsequent third parties
(the ‘cracked mirror’).
Essentially, when dealing with beneficial interests, we’re in paragraph 2: the
beneficial interest behind a trust of land is a property right so we’re always
interested in whether the owner of the beneficial interest is in actual occupation (if
they are, it would bind subsequent buyer/lender).
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