Register of the Title on Land Law - Essay Example

Land Law 'The register of is broadly intended to operate as a mirror, reflecting to the potential disponee (and to any other interested person) the totality of the proprietary benefits and burdens which currently affect the land. Illustrating with decided cases, consider the extent to which overriding interests detract from this fundamental principle. Land is one of the most valuable asset and thus there a large number of features revolving around it. Two of its basic features include tenure and estate. Tenure involves the quality of land-holding, the period for which the land is granted. Estate is the quantity of land holding, the period for which the land was granted. The importance of estates, and the reason why the law relating to land is much more complicated than the law relating to ownership of other property, is that several people have different estates in the same piece of land. Land law uses and exploits the parallel legal and equitable interests in land to produce often elegant, sometimes bewildering, solutions to complex problems of land ownership. There had been considerable statutory reform of land law during the nineteenth century, but a need for a comprehensive code of property legislation was felt, which resulted in the magnificent achievements of the draftsmen and legislature known as the 1925 legislation. Registration of title was also introduced at this time and was extended by the Land Registration Act 1925. The idea lying behind is that there should be a register containing all the relevant details about all land in England and Wales. Compulsory registration of title has been extended to the whole of England and Wales since 1 December 1990. There were two reasons for the establishment of such a system: 1. To provide a simpler and faster method of proving title when the land is conveyed. 2. To provide better protection for purchasers and for the owners of equitable interests in the land conveyed. Proof of Title: A vendor must be able to proof that he is entitled to the land before he can pass good title to a purchaser. Initially such proof was provided by the production of the title documents to the land, i.e. the conveyances or leases. The vendor had to be able to show the chain of ownership for the last thirty (now 15 years).And each time the land was sold, all these documents had to be examined under the LRA 2000 a single register entry is substituted for the series of title deeds as proof of titles, and a prospective purchaser need only examine this register entry. Theodore Rouff had laid down three basic principles of Land Registry. One among them is the mirror principle which states: " the register of title reflects accurately and completely beyond all arguments the facts that is material to the title" (wikipedia)1. In simpler terms it can derived that this principle proposes the fact that the register of title is the mirror which reflects accurately all the current facts and figures those are material to title. However there are few exceptions to this fact. Other than these exceptions the tile is free from all adverse burdens, rights and qualifications unless they are mentioned in the register. Overriding interest can be described as one of the most important exception to the mirror principle. Overriding interests: Definition: These are defined in s32 (xvi) LRA 1925 as: 'all the encumbrances, interests, rights and powers not entered on the register, but subject to which registered dispositions are to take effect' Meaning: In simpler terms overriding interest can be defined and determined as the interest which override. It is liable on the purchaser to inspect the land and make inquiries as there are few dispositions like overriding interest which do not appear on the register3. It is thus very important to know whether a third party interest in land is one which overrides or one which requires protection on the register. Effect: These are, therefore, rights which bind a purchaser without appearing on the register, even though he has no knowledge of them. They provide the most common pitfall for a purchaser of registered land and: 'provide a cavernous crack in the fundamental mirror principle under which the register is supposed to reflect accurately and irrefutably the current facts material to a particular title' (Hayton, Registered Land). Types of overriding interest: 1. Those specifically listed in s70 (1) LRA 1925, although often in the broad and uncertain terms. 2. Minor interests which are not protected by registration but are protected under s70 (1) (g) and converted into overriding interests. To understand and derive a more clear description of the topic in discussion, we would be looking into the following case: William & Glyn's Bank Ltd v Boland [1981] AC 4874 A detailed understanding of the case gives a clear picture of the different clauses, effects and possibilities related to the overriding interest. We would be addressing the topic under the following different sections of the Land Registration Acts. Section 70(1) LRA 1925 are: a) Rights of common, drainage rights, customary rights (until extinguished), public rights, profits a prendre, rights of sleepwalk, rights of way, watercourses, rights of water and other easements not being equitable easements required to be protected by notice on the register. b) Liability to repair highways by reason of tenure and other tenurial obligations c) Liability to repair the chancel of a church d) Liability in respect of embankments and sea and river walls. e) Title redemption annuities f) Rights acquired or being acquired under the Limitation Act 1980. g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof save where inquiry is made of such persons and the rights are not disclosed. h) In the case of possessory, qualified, or good leasehold title, all estates, rights, interests and powers excepted from the affects of registration. i) Rights under local land charges unless and until registered on the register at the land registry on the particular title concern. (such registration at the land registry is rare and the normal practice is to rely upon registration in the local land charges register.) j) Fishing, sporting, seigniorial and manorial rights and franchises. k) Leases granter for a term not exceeding 21 years5 (s70 (1) (k) LRA 1925 as amended by s4 (1) LRA 1986). l) Mineral rights in respect of land registered before 1926." The most important of these are s70 (1) (a), (f), (g) and (k), which will now be considered in more detail. Section 70 (1) (a) Most problems with this section arise from the strange jumble of interests listed, this jumble being due to the legislative history of this provision. This section is obviously intended to protect legal easements and profits, which is the position in un registered land, but the meaning of the words 'equitable easements' required to be protected by notice' is unclear, because there are no such requirements elsewhere in the Act. Equitable interest may be protected by notice but, they may also be protected by a caution. It has been held in a country court case, Payne v Adnams6 [1971] CLY 6486, that this means no equitable easements are excluded from s70 (1) (a), but the general opinion of the Land Registry is that equitable interests cannot be overriding interests. This opinion must now be read in the light of the decision of Scott J in Celsteel Ltd v Alton Hose Holdings Ltd 7 [1985] 1WLR 204.The judge decided that under r258 of the Land Registration rules an equitable easement was 'a right enjoy with the land' for the purpose of that rule. As it affected the registered title it was an 'overriding interest' which did not need to be protected by notice on the register. For examination purposes this decision should be considered within the potential question of the treatment of equitable easements in registered and unregistered land .Equitable profits a prendre can, on the other hand, be overriding interests. In addition the interests covered by s70 (1) (a) include: 1) legal easements or profits a prendre created before the surveyant tenement was registered. 2) legal easements or profits a prendre created other than by express grant or resolution, i.e. by implied grant, under s62 LPA 1925 or the rule in Wheeledon v Burrows8 (1879) 48 LJ Ch 853 CA, or by prescription. Section 70 (1) (f) This provides for the rights arising by adverse possessions. Once the owners title has been extinguished the squatter may apply to be registered in the owners place, and until this is done the owner holds the property on trust for the squatter. Section 70 (1) (k) This section is intended to protect those leases which cannot be registered dispositions because they are for 21 years or less. Section 4 LRA 1986 amends s 70 (1) (k) LRA 1925. Any lease granted for a term of 21 years or less is now an overriding interest. This removes the previous exemptions relating to leases without a rent or granted with a premium. Thus the provisos for such a lease are now that the term does not exceed 21 years, and that the lease was granted. It appears that the distinction between a lease within s70 (1) (k) and an agreement for a lease not within s 70(1) (k) is retained. In addition, leases for three years or more not granted by deed and so cannot be said to have been within the courts granted. Leases for 21 years or less which do not qualify under s 70 (1) (k) are registrable as minor interests, or may come within s70 (1) (g) as 'rights protected by actual occupation'. Legal leases for a term not exceeding 21 years taking affect is possession or within one year from the date thereof granted at a rent without taking a fine take affect as though they were registered dispositions immediately upon be granted, ss18 (1), 19(2) and 22(2), subject to minor interests on the register and overriding interests. Section 70 (1) (g) All the interests specifically listed in s70 (1) are legal interests. The intention of the Act was to preserve the legal interest as good against the entire world, while making equitable interest registrable as minor interest. However, the wording of s70 (1) (g) has allowed the courts to interpret this sub section as including equitable interests, which are they by made over riding interests. This distorts the basic structure of the act and can result in bona fide purchaser of the legal estate of registered land being bound by unregistered equitable interest of which they have no notice, actual or constructive. The section70 (1) (g) provides: 'The rights of every person in actual occupation of the land or in receipt of the rents or profits there from sale where inquiry is made of such person and the rights are not disclosed.' Before s70 (1) (g) can apply three conditions must be satisfied: 1. There must be a right 'subsisting in relation to the land' which is capable of being protected by s70 (1) (g).In Webb v Poll mount Ltd (1966) such a right was defined as being: 'An interest in the land capable of enduring through different ownership of the land according to normal conceptions of title to real property'. Neither occupation nor notice of occupation can buy itself create the overriding interests. There must be an existing 'Right, protected by occupation, before s70 (1) (g) can apply. However with the advent of Land Registration Act 2002 few changes have been witnessed. LRA 2002 enables the compulsory introduction of electronic conveyance using electronic signatures to transfer and register property9. Besides this the other highlights of the LRA 2002 includes: 1) LRA 2002 is the first major overhaul of the land registration system for 75 years, it simplifies and modernizes land registration law. 2) The rights and interest of the register are more clearly defined and described 3) There have been major changes reflected in the law and practice related to registered land as such: i) Registering for shorter leases ii) For new types of interest in land, voluntary registration is made available. iii) Changes affect the protection of third party interests iv) The law of adverse possession (squatter rights) has been reformed. Effect of LRA 2002 on Overriding interest: The LRA 2002 seeks to reduce the number of overriding interests, and to replace as many as possible of them with register entries. This is in keeping with its overall objective of making the register as complete a record of title as possible. This could be made possible by narrowing the scope of overriding interests, eventually abolishing the others, asking people to make aware about the unregistered interests, so that these could be registered and providing that, once an interest has been noted on the register, it loses its overriding status forever, even if the register entry is cancelled. CONCLUSION: Overriding interests are unregistered interests which overrides first registration or registered dispositions10 as listed in Schedules 1 and 3, LRA 2002. Schedule1 lists those that override first registration. Schedule 3 lists those that override registered dispositions. It contains a number of mechanisms by which overriding interests will be brought on to the register. The procedures involved in this include certain interests exceeding 10 years should be noted as free of charge, bringing overriding interests to attention so that proper measures can be taken against it. This law makes applicable to all the applicants to bring into notice the overriding interest affecting the land. BIBLIOGRAPHY : 1) Abbey, Robert & Richards, Mark. (2002). Blackstone's Guide to the Land Registration Act 2002, pg 21-22, 64-65, 142-145. 2) Bell, Cedric. D. (1999). Land: The Law of Real Property, 37 - 54 3) Dodds Malcolm & Shepherd Chris (Eds.). (2001). Law Update 2001, London: Old Bailey Press., 294-297 4) Gray Kevin & Gray Susan (2006). Elements of Land law, USA: Oxford University Press 5) HM Land Registry - Wikipedia: en.wikipedia.org/wiki/HM_Land_Registry 6) Overriding interest case: www.cambridge,org/resources/0521614899/3031_2551_Ch15Exts.doc Read More