Land Registration - GDL Land Law

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General Principles

Two registerable estates (S.4(1)-(2) LRA)

• An estate in fee simply absolute in possession

• A term of years absolute of more than 7 years

Degree of titles:

• Absolute

• Possessory (given to adverse possessors; less permanent & may be challenged; may also be upgraded)

• Qualified (uncertainty about deeds; can no longer register but was innovation to get registration going)

• Good leasehold (leasehold from non-absolute freehold title)

Registerable interests (must be entered to be legal interests):

• Mortgages (S.4 & 27 LRA)

• Expressly created easements on registered land (S.27 LRA)

Failure to register when it is required means that the transfer of legal estate will not take effect (S.7 LRA) & will not enjoy protection as a registered estate (S.25 LRA)

Future changes:

• Change from 7 to 3 years minimum for leases (used to be 21 yrs – aims to cut down to 3 years to coincide with formality rules)

• Paperless transactions with no deed S.93 LRA

  • Electronic discharge of mortgages

  • However the Registry announced e-conveyancing was on hold

• Compare NZ: almost completely electronic

NB: the system is a register of titles, which will be greater than plots of land – this is in contrast to a cadastre system

History of Registration

• Unregistered land -> title found in title deeds/possession – possession is the root of title in unregistered land

Title Registration Act 1880 – going to court to register title

LRA 1925 – voluntary system

1950’s onwards - predominance of registered titles

1990 – compulsory first registration on transaction (as well as voluntary registration)

LRA 2002 - “evolution not revolution”; introduces electronic conveyancing (ON HOLD & you must still sign the docs as well as electronic transmission).

Aims of LRA 2002

• Title guarantee (S.58 LRA title by registration)

• Owner’s powers (S.23 LRA)

  • Disposition & transfers

  • Trustees have all the powers of an owner (though you may sue for breach of trust)

  • Entry of a restriction may curtail owner’s powers

• To ensure as many interests are recorded as poss

  • Example: LRA 1925 21 year leasehold vs. LRA 2002 7 year leasehold (with view to 3)

  • Example: SCMLLA Properties v Gesso Properties Crown cannot hold a title to land vs. S.79 LRA 2002

• To ensure as many third-party rights are recorded as poss

• To minimise effect of unregistered third-party rights (Sch 1, 3)

• Transactions quicker & cheaper

  • In contrast, a piece of unregistered land would take 2-3 months to convey

• Eventual e-conveyancing (on hold)

The Register is not a mirror however: caveat emptor (you must still inspect the land & ask the seller)

4 part classification:

• Estates (freeholds & leaseholds >7)

• Registered charges (S.23)

• Overriding interests (Sch.1 & 3)

• Interests protected by registration

Title Guarantee

‘Indefeasibility’ (or the ‘Torrens system’) is a collective term for the mirror principle, the curtain principle and the insurance principle (Sch. 8 claim for indemnity – no-fault compensation for faults on the register). British land law does not ensure full indefeasibility – overriding interests (which emphasise the use of land as opposed to its alienability)

B sells to C fraudulently & registers; A cannot get the money from that sale but will get an indemnity

S.58 LRA title by registration

• Problem is that the title deeds become defunct upon registration -> what if they turn out to be weak or incomplete?

Walker v Burton

Held: (CA) registered owners of an estate successfully registered their right to the Fell surrounding it & this was held to be a confirmed title

• Mummery LJ "It was a relevant consideration that the Fell should be owned by someone rather than left in limbo with continuing uncertainty about title to it,” the Burtons “had invested time, effort and money on improving the Fell and its management”.

Roberto Mac

Registration by mistake some of the Applicant’s land

Held: Sch. 4 register altered; Sch. 8 indemnity

Goldharp v MacCloud

Mistaken priority of interests on the register

Held: priority may be altered by Sch. 4; Sch. 8 indemnity protects interests of RP in possession

• HOWEVER Malory v Cheshire & Fitzwilliam v Richall seriously undermine the title guarantee provision: CA said when you are registered the only thing you are guaranteed is the empty formal paper title, not the ownership underneath. The true owner still owns an equitable title. These cases followed the principle ‘you can’t sell what you don’t own’ which fundamentally contradict Walker v Burton.

Swift 1^st v Chief Land Registrar 2015

Swift gave mortgage to a fraudster

Held: fraudster was still RP; Lord Patten effectively put to bed the ‘Malory Trust’ which suggested only a bare legal estate was registered where fraud was involved -> Swift 1^st claimed their Sch. 8 indemnity successfully

Scott v Southern Pacific Mortgages

• Baroness Hale: tension between title guarantee (and Sch. 8), which emphasises the transactional value of land, and land’s emotional, familial and social use

Mistakes on the Register

1. Alterations

   1. Administrative errors (Sch. 4)

   2. Substantive mistakes that do not ‘prejudicially affect the title of the RP’

   3. The court ‘must’ make an alteration unless there are exceptional circumstances (Rule 126, LRR 2003)

      1. Perhaps Walker v Burton is a type 1 mistake? However the court in that case considered it a rectification

2. Rectifications

   1. Mistake which does or could prejudicially affect the title of a RP (Sch. 4, 1)

      1. Swift 1^st – title of lender prejudicially affected

      2. Gold Harp – title of leaseholder prejudicially affected by removal

      3. Re Chowood’s Registered Land – an alteration giving effect to OI will never be rectification as there is no prejudicial effect (the OI would have bound the RP anyway)

   2. Mistake may be to the underlying facts i.e. not made by the Registry Baxter v Mannion

   3. Principal ground for indemnity (Sch. 8)

   4. Rectification against an...