Land Registration

• Three principles of Land Registration (more policy goals, regularly broken)

  • The Mirror Principle – the idea that everything should be written on the register.

    • Crack in the mirror: Overriding interests cannot be registered.

      • Logistical reasons (convenience): too many short leases.

      • Socially important rights: e.g. the rights of a person in actual occupation needed more protection.

  • The Curtain Principle – linked to the idea that purchasers do not always have to be bound by every type of interest; some interests exist behind the curtain of overreaching.

    • Under LPA 1925 (s. 2 & s. 27). NB if there is only one legal owner, overreaching cannot happen.

    • Overreaching occurs when a person's equitable property right is dissolved, detached from a piece of property, and reattached to money that is given by a third party for the property.

  • The Insurance Principle – the idea that when there are mistakes there ought to be financial compensation.

• Two types of registration

  • Substantive: title by registration: Entered on the register in order to create the legal estate or interest

  • Protective: title of registration: Entered in order to protect a legal estate or interest

• Land cannot be double registered (technically), but the Land Registry can make a mistake.

• Title Guarantee (s.58 LRA 2002)

  • Once you are registered with a title it is deemed to be yours in law and equity (i.e. absolutely) unless there is something contrary on the register.

  • Swift 1^st Ltd. v Chief Land Registrar [2015] – Chief Land Registrar was arguing against the guarantee under s.58 in order to get out of paying compensation.

    • Court of Appeal rejects this hands down.

  • Note, English system is not a Torrens system

    • Title guarantee is sometimes confused with indefeasible title (i.e. cannot be taken away). This is what exists in what is called a Torrens registration system.

  • Title can be taken away in well-defined circumstances as found in the legislation itself not under the general law.

    • Principles of Rectification per Schedule 4 LRA 2002.

      • (a) correcting a mistake,

      • (b)bringing the register up to date, or

      • (c)giving effect to any estate, right or interest excepted from the effect of registration.

  • Walker v Burton [2013] - If I become registered with a plot of land that isn’t really mine then it becomes mine.

    • nemo dat rule does not apply in land.

  • Baxter v Mannion [2011] It is still possible to unregister land

    • Manion claimed that he had a right to the land as he had squatted.

      • Was proved that Manion had not squatted so the registration was undone.

  • Scott v Southern Pacific Mortgages (2014) - Frauds involving c.100 houses. Persons needing money sell houses and have them leased back to you. X bought the houses using mortgages from Southern Pacific. Innocent owners vs. innocent bank – the bank won.

    • Obiter Dicta of Lady Hale: we all need to remember that land registration is merely conveyancing machinery. If we think about it otherwise it is the land registration tail wagging the ownership dog.

      • It is really about the underlying title.

      • The problem with this is this is not was s. 58 says – nobody follows this principle.

  • The tension between the idea that true ownership cannot be changed by registration and the fact that is s. 58.

    • Lady Hale is now president of the supreme court were a case to go to the supreme court, all bets are off.

    • In 2018 report the Law Commission considers whether we ought to retreat from hard edged title guarantee – they said no.

Alteration and Rectification

• Two views:

  • Narrow view of alteration: We want title by registration

  • Wide view of alteration: we want to be able to alter easily so that the register reflects any mistakes

• LRA 2002, Sch 4(1) gives either the registrar powers to rectify the register or, alternatively, gives the court wide powers to make an order for rectification of the register.

• Issue with 2016 consultation paper: it takes a position of principle that we must make the register ‘indefeasible’.

  • This is too strong a position.

  • The word ‘indefeasible’ is dropped in the final 2018 draft of the paper.

• Three ways to alter register

  • 1) To bring the register up to date.

    • Administrative things

    • Void v Voidable transactions

      • A void transaction was one that under the common law was never valid (e.g. fraud)

      • A voidable transaction is one where the victim can choose for it to be valid or choose for it to be void (e.g. undue influence)

    • An entry made in pursuit of a voidable transaction is not a mistake, even if the entry is then removed.

      • Therefore, no indemnity triggered.

    • NRAM Plc v Evans [2017] Voidable transaction – they were deleted from the register.

  • 2) Mistakes

    • There is a mistake where an entry has been made/not made because of a misunderstanding of the underlying facts.

      • Baxter v Mannion [2011] Error is factual basis of claim (hadn’t completed 10 years of adverse possession). Register was updated.

    • Once there has been a mistake case law establishes that all subsequent transactions are also mistaken.

      • Gold Harp v McLeod [2014] –Intending to develop the property, when tenant failed to pay rent owner closed leasehold titles on the register. Tenant sought rectification.

        • Held that the judge was entitled to not only restore an interest that was removed from the register by mistake, but also to give it priority to an interest which had been registered since the mistake.

      • Rashid v Rashid [2017] – Rashid had fraudulently acquired the title to land in 1989. In 2011 original owner sought rectification.

        • Held that even criminals and scoundrels were entitled to the benefit of limitation periods, and the adverse possession in the meantime was valid even if the original registration was not.

      • This would not be held under indefeasible systems (Canada, Australia, New Zealand)

      • Not saying that we will undo the transaction, just saying there is a mistake.

    • A mistake opens up the possibility of the register changing not the certainty of...

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