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You are here: BAILII >> Databases >> The Law Commission >> Land Registration For The Twenty-First Century: A Conveyancing Revolution (Report) [2001] EWLC 271(2) (9 July 2001)
URL: http://www.bailii.org/ew/other/EWLC/2001/271(2).html
Cite as: [2001] EWLC 271(2)
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PART II SUMMARY OF THE MAIN CHANGES MADE BY THE BILL
INTRODUCTION
2.1 In Part I of this Report, we stated that the Land Registration Bill would bring about the most fundamental changes to conveyancing and land law since the reforms of 1925.[1] Indeed, the effect of the Bill may be even more profound than the changes made in 1925. Three of its features are particularly striking
(1) It creates a new system of electronic conveyancing that is quite different from, and will supersede, the present paper-based practice. One of its main aims is to make it possible to investigate title as far as possible online, with a minimum of additional enquiries.
(2) When the system of electronic conveyancing is fully operative, the transfer or creation of many interests in land will only be effective when registered. An electronic system means that these two distinct steps will in fact occur simultaneously. This overcomes the difficulties that presently exist because of the so-called "registration gap"[2] and means that the register will become conclusive as to the priority of most expressly created interests in registered land.
(3) It introduces a new system of adverse possession, applicable only to registered estates and registered rentcharges. This system is based upon the recognition that registration is the basis of title to registered land and not possession (as is the case in relation to unregistered land).
2.2 In this Part, as a necessary prelude to the technical commentary on the Bill that follows, we summarise the main changes that the Bill will make to the present law. For the convenience of readers, we examine the topics in the order in which they appear in the Report.[3] That order is determined partly, but by no means exclusively, by the arrangement of clauses in the Bill, rather than by the intrinsic importance or novelty of the provisions. Indeed the explanations of both electronic conveyancing and the new provisions on adverse possession appear towards the end of the Report.
2.3 The matters addressed in this Part are as follows
(1) first registration;
(2) cautions against first registration;
(3) powers of disposition;
(4) registrable dispositions;
(5) priorities;
(6) notices and restrictions;
(7) charges;
(8) overriding interests;
(9) registration;
(10) special cases;
(11) alteration, rectification and indemnity;
(12) conveyancing: general matters;
(13) electronic conveyancing;
(14) adverse possession;
(15) judicial provisions; and
(16) rules.
In the course of this review, we make one recommendation. This relates to the future extension of compulsory registration of title,[4] and it is for future action.
FIRST REGISTRATION
2.4 The provisions governing first registration were recast comparatively recently by the Land Registration Act 1997. This Act was the first result of the joint work on land registration by HM Land Registry and the Law Commission and it greatly extended the dispositions which trigger the compulsory registration of land.[5] The Bill does make further changes to the law, but they are less extensive than those made by the 1997 Act.[6] Four of these changes are, however, particularly noteworthy.
2.5 First, in response to views expressed on consultation, the Bill permits the voluntary registration in two cases where it is not presently possible. Profits à prendre in gross[7] and franchises[8] may be registered with their own titles, provided that they are held for an interest equivalent to a fee simple or under a lease of which there are still 7 years to run.[9] Such rights often have considerable economic value and, particularly in the case of certain profits (such as fishing rights), are not infrequently bought and sold. At present such rights can only be noted in the register.
2.6 Secondly, the length of leases that are subject to compulsory registration is reduced. Leases granted for more than 7 years (rather than for more than 21 years as at present) will be subject to the requirement of registration,[10] with a power to reduce the period still further.[11] At present, most business leases -the most common form of commercial dealing with land -are granted for periods of less than 21 years[12] and are therefore incapable of registration. We can see no justification for excluding such leases from the benefits of land registration and, in particular, electronic conveyancing. Furthermore, it is absurd to continue to maintain two separate systems of conveyancing -the registered and unregistered -particularly as these will become much more divergent as a result of this Bill. Unregistered conveyancing must be given its quietus as soon as possible.
2.7 Thirdly, the Bill makes it possible for the Crown to register for the first time land that is held in demesne -in other words land that it holds in its capacity as ultimate feudal overlord. At present only estates in land can be registered,[13] and land which the Crown holds in demesne is not held for an estate.[14] The Bill enables the Crown to grant itself a freehold estate so that it can register it. [15] This is of some practical importance because the amount of land held in demesne is considerable. In particular, most of the foreshore is so held and cannot at present be registered. If such land is registered, it will be easier for the Crown to protect it against adverse possession[16] under the provisions explained below. [17] This is very much in the public interest, as it preserves the foreshore from incursions.
2.8 Fourthly, the territorial extent of the land that can be registered is significantly increased by the Bill so that some submarine land will become registrable. [18]
2.9 We consider that, in principle, the remaining unregistered land should be phased out as quickly as possible and that all land in England and Wales should be registered. As we have indicated above, [19] the continuation of two parallel systems of conveyancing, registered and unregistered, has absolutely nothing to commend it. Furthermore, as a result of the change to an open register in 1990, the contents of the register are now public.[20] The register is no longer something of concern only to conveyancers but provides an important source of publicly available information about land, a resource in which there is an increasing interest. However, the Bill does not introduce any system to compel the registration of all land that is presently unregistered. This may at first sight appear paradoxical, but there are three particularly compelling reasons for not doing so at this juncture.
2.10 First, we consider that it would be premature to do so. Not only have the changes made by the 1997 Act only recently started to have effect, but the present Bill will offer considerable additional benefits to those whose titles are registered, quite apart from the conveyancing advantages should they wish to sell or deal with their land.[21] We therefore anticipate a very significant rise in voluntary first registrations as a result.[22] Compulsion should not be employed in our view until it is clear that existing provisions have been given an opportunity to work.
CAUTIONS AGAINST FIRST REGISTRATION
2.14 As the name suggests, cautions against first registration provide a means by which a person, having some estate or interest in the land affected, may be notified of an application for first registration.[23] Such cautions exist under the present law. [24] The principal changes to the present law that the Bill makes are as follows. First, it places the register of such cautions on a statutory footing and makes provision for its alteration by analogy with the provisions applicable to the register of title. Secondly, it makes it impossible for a person to lodge a caution against first registration in relation to his or her own estate, where that estate is registrable.[25] The entry of a caution against first registration is not intended to be a substitute for the registration of an estate where such registration is possible.[26]
POWERS OF DISPOSITION
2.15 As we have indicated,[27] one of the goals of the Bill is to make it possible for title to land to be investigated almost entirely on-line. The register must therefore provide all the necessary information about the title. One ground on which a disposition of land might be challenged is that the party who made it was acting outside his or her powers in some way, as for example, where a statutory body such as a local authority made a disposition that it was not permitted to make.[28] The present law is not entirely clear on this point. However, it has been assumed that a registered proprietor is to be taken to have all the powers of disposition that an absolute owner of a registered estate or charge would have under the general law, unless there is some entry in the register, such as a restriction or caution, which limits those powers.[29] The Bill gives statutory effect to that assumption.[30] At the same time, it makes it clear that, although a disponee's title will be protected if some limitation on those powers has not been entered in the register,[31] this does not make the disposition lawful.[32] The protection given to the disponee's title does not therefore prejudice any claims that may arise in relation to the improper exercise of that power.[33]
REGISTRABLE DISPOSITIONS
2.16 The Bill lists the transactions that are registrable dispositions, in other words, those dispositions that transfer or create a legal estate and which should, therefore, be completed by registration.[34] There are two novelties in the Bill. First, the concept of registrable dispositions is extended to leases granted for more than 7 years or (rather than for more than 21 years, as at present),[35] with a power to reduce that period still further.[36] This echoes the position in relation to first registration.[37] Secondly, Schedule 2 sets out precisely what the registration requirements are for registrable dispositions.
PRIORITIES
2.17 At present, the law that governs the priority of interests in registered land is partly a matter of express provision in the Land Registration Act 1925 and partly a matter of common law where that Act is silent. Although the relevant common law principles have been clarified by judicial decision, they are still in some respects uncertain. The Bill therefore sets out in statutory form the principles of priority that apply in relation to interests in registered land. The effect of the general principle stated in the Bill is that the date of the creation of an interest determines its priority, whether or not it is protected in the register.[38] However, by way of exception, where a registrable disposition is registered, it takes priority over any interest that affected the estate immediately prior to the disposition that is not protected at the time of registration.[39] Subject to certain exceptions, of which overriding interests are the most important, an interest will only be protected if it is a registered charge or the subject of a notice in the register. When electronic conveyancing becomes the norm, it is likely to become impossible to create or transfer many interests in registered land except by simultaneously registering them.[40] In this way, creation and registration will coincide so that the register will in fact become conclusive as to the priority of many interests and not just, as now, of interests under registered dispositions.
2.18 The Bill also clarifies the status of certain rights for the purposes of registered land, namely rights of pre-emption, an equity arising by estoppel and a mere equity. All are treated as proprietary interests from the time of their creation for the purposes of the Bill.[41]
NOTICES AND RESTRICTIONS
2.19 Not only does the Bill seek to make title to registered land more secure, but it also attempts to enhance substantially the protection given to the interests of third parties over registered land. The Bill does this by simplifying the methods of protecting such interests in the register and, at the same time, extending the protection that an entry in the register gives. Two of the existing forms of protection -cautions against dealings and inhibitions -are prospectively abolished, subject to transitional provisions.[42] Cautions against dealings do not protect the priority of an interest, but merely give the cautioner a right to be notified of an impending dealing with the registered land. However, where a person who wishes to protect his or her interest in the register cannot obtain the consent of the registered proprietor to the entry of a notice or restriction, a caution is the only available option. Inhibitions are merely one form of restriction on a registered proprietor's powers. They prevent the registration of any disposition of a registered estate or charge.[43] There is no good reason for retaining them as a separate form of entry.
2.20 The only two forms of protection under the Bill are notices and restrictions.[44] A notice is appropriate to protect incumbrances on land that are intended to bind third parties, such as the burden of a lease, an easement or a restrictive covenant.[45] A restriction regulates the circumstances in which a disposition of a registered estate or charge may be the subject of an entry in the register.[46] It can be used for many purposes, for example to ensure that
(1) where there is a disposition of land held on a trust of land or a settlement, the proceeds are paid to at least two trustees or to a trust corporation, thereby overreaching the interests under the trust or settlement;
(2) where any consents are required to a disposition, they are obtained; or
(3) where a corporation or other body has limited powers, to indicate this limitation.[47]
2.21 Under the Bill it will be possible either to enter a notice or apply for a restriction without the consent of the registered proprietor.[48] However, in such a case, the proprietor will be notified
(1) in the case of a notice, of its entry and will be able to apply for its cancellation;[49] and
(2) in the case of a restriction, of the application, to which he may then object.[50]
2.22 The Bill also imposes a duty on a person to act reasonably in exercising the right to apply for the entry of a notice or restriction. The duty is owed to any person who suffers damages in consequence of the breach of that duty.[51]
CHARGES
2.23 Such changes as the Bill makes in relation to charges are mainly of a technical kind.[52] Two are, however, significant. First, the law that governs the priority of further advances made by chargees is recast so that it coincides with present practice. A new method of making further advances is also offered.[53] Secondly, the Bill imposes a duty on the registrar (for breach of which indemnity is payable) to inform existing chargees whose charges are protected in the register, of any overriding statutory charge when it is registered.[54]
OVERRIDING INTERESTS
2.24 Overriding interests are interests that are not protected in the register but are, nonetheless, binding on any person who acquires an interest in registered land, whether on first registration or where there has been a registrable disposition of a registered estate that has been completed by registration. The range of interests that are presently overriding is significant. They include many easements (whether or not these have been expressly granted or reserved),[55] the rights of persons in actual occupation,[56] leases granted for 21 years or less,[57] as well as some obscure interests that may have very serious effects on the registered proprietor (such as manorial rights). Overriding interests therefore present a very significant impediment to one of the main objectives of the Bill, namely that the register should be as complete a record of the title as it can be, with the result that it should be possible for title to land to be investigated almost entirely on-line.
2.25 The Bill seeks to restrict such interests so far as possible.[58] The guiding principle on which it proceeds is that interests should be overriding only where it is unreasonable to expect them to be protected in the register.[59] The Bill incorporates a number of strategies to achieve this objective. These include, in particular, the following
(1) defining the categories of overriding interests more narrowly;
(2) excluding some expressly created interests from overriding status;
(3) phasing out the overriding status of the more obscure interests after 10 years and allowing for them to be entered on the appropriate register without charge in the interim;[60] and
(4) strengthening mechanisms for ensuring that overriding interests are protected in the register if they are capable of being so protected.
2.26 The move to electronic conveyancing, described below,[61] will itself facilitate the process of eliminating overriding interests. This is because it is envisaged that many interests in land will only be capable of being created when simultaneously registered.[62] Such interests will never be overriding, therefore.
(1) most leases granted for three years or less; (2) the interests of persons in actual occupation where
(a) that actual occupation is apparent; and
(b) the interest
(i) is a beneficial interest under a trust; or
(ii) arose informally (such as an equity arising by estoppel);
(3) legal easements and profits à prendre that have arisen by implied grant or reservation or by prescription;
(4) customary and public rights;
(5) local land charges; and
(6) certain mineral rights. Each of these can be justified under the guiding principle mentioned above in paragraph 2.25.
REGISTRATION
2.28 As would be expected, the Bill contains extensive provisions relating to registration, the register and searches of the register.[63] These are provisions of considerable practical importance, though most of them are similar to existing provisions. There are some new provisions, however.
2.29 First, there is a power to record in the register the fact that a right to determine a registered estate has become exercisable. The main case that this is intended to cover is where the owner of a freehold subject to a rentcharge has failed to pay the rentcharge and the owner of that rentcharge has a power to re-enter in consequence.[64] This accords with our policy of trying so far as possible to make the register conclusive as to title, so that inquiries outside of the register are kept to a minimum.[65]
2.30 Secondly, in response to representations that were made to us on consultation, the Bill gives the registrar power to disclose information about the history of a title.[66] The register is a record of the title as it stands at any given moment. It does not explain the history of the title, nor is that history relevant in most cases. However, there are occasions when it is necessary to discover how title devolved and the Bill will enable those who have reason to discover this to be able to do so to the extent that the registrar has the information.
2.31 Thirdly, at present, land and charge certificates have to be produced on various occasions in relation to particular transactions or entries in the register. The Bill abolishes (by making no provision for) charge certificates. The role of land certificates is considerably reduced.[67]
SPECIAL CASES
2.32 The Bill makes provision for certain special cases.[68] Of these, the only one where the Bill makes significant changes to the present law is in relation to the Crown.[69] The Bill addresses three difficulties that presently exist.
2.33 First, much of the land which the Crown holds is not held by it in freehold tenure but in demesne. In other words it holds the land in its capacity as ultimate feudal overlord of whom all freehold land in England and Wales is directly (or perhaps very occasionally indirectly) held. However, as we have mentioned,[70] it is only possible to register a freehold or leasehold estate, so that much of the land that the Crown holds, cannot be registered.[71] The Crown Estate wishes to be able to register land held in demesne. The Bill makes provision by which the Crown may grant to itself a fee simple for this purpose.[72]
2.34 Secondly, the Bill makes provision for the Crown[73] to lodge cautions against the first registration of land held in demesne.[74] Although "Crown cautions" have been lodged in the past, there is no express right to do so under the present legislation and the Bill places the matter beyond doubt.
2.35 Thirdly, there are occasions when an estate in fee simple determines and the land escheats to the Crown. At present, if the title to such land is registered, it should be removed from the register because it ceases to be held in fee simple and is, instead, held in demesne.[75] The Bill contains provisions to ensure that entries in the register in relation to such escheated land remain until the land is disposed of by the Crown or pursuant to an order of the court.[76]
(1) the application of principles of feudal tenure in relation to the Crown; and
(2) the legislation governing dispositions of property by the Royal Duchies. It was either difficult or, in some cases, impossible, to achieve the straightforward and sensible outcomes that all parties desired.[77] This was partly because of these complexities and in part because the feudal character of the applicable rules of law was fundamentally at variance with the way in which land is now transferred or granted. Both the Crown and the Royal Duchies have important public functions in relation to land. They also have large commercial property portfolios. The rules of law under which they are presently required to operate impede the efficient conduct of their functions. They also create difficulties for those who deal with the Crown and the Duchies.
(1) the holding of land by the Crown and the Royal Duchies;
(2) the circumstances in which land passes to the Crown and the Duchies because it is ownerless; and
(3) the rights and responsibilities of the Crown and the Duchies in relation to such property, particularly when (as is usually the case) it is of an onerous character. We cannot immediately see any good reason for the retention of the remaining aspects of feudalism in England and Wales. We note that the Scottish Parliament recently abolished the admittedly more pervasive feudal system that applied in Scotland.[78]
ALTERATION, RECTIFICATION AND INDEMNITY
2.38 Mistakes do occasionally occur in the register[79] and it is also necessary to update it to take account of interests that have determined. The Bill does not make major changes to the present law and practice on the alteration of the register. What it does do is to codify that present practice in a way that makes its working apparent.[80] The present legislation obscures what actually occurs.
2.39 The law governing the payment of indemnity for mistakes that have occurred in the register and other losses for which the Registry is responsible was revised by the Land Registration Act 1997. The Bill does not, therefore, make anything more than minor changes to the present law.[81]
CONVEYANCING: GENERAL MATTERS
2.40 The fact that the register is a public document that is readily and cheaply accessible means that the provisions of the Land Registration Act 1925 that prescribe what proof of title a seller of a registered estate must deduce[82] are now badly out of date. They were conceived at a time when the register was closed and could be inspected only with the permission of the registered proprietor and when searches in the register had to be conducted in person at HM Land Registry in London.[83] These prescriptive rules are not replicated in the Bill, though there is a power to make rules as to the obligations of a seller in relation to the proof and perfection of his or her title.[84]
ELECTRONIC CONVEYANCING
Introduction
2.41 The move from a paper-based system of conveyancing to one that is entirely electronic is the most important single feature of the Bill.[85] However, it should not be thought that this is something sudden. It is in fact the logical culmination of a process that has been going on for a number of years.[86] The land register has been progressively computerised and almost all registered titles have now been entered on the computer. A system of direct access to the computerised register was first introduced in 1995. It is now known as Land Registry Direct.[87] Even electronic conveyancing has begun. It is already possible to notify the Registry of the discharge of a registered charge by electronic means,[88] and applications to register dealings with registered land can be lodged electronically.[89] The development of electronic conveyancing is occurring simultaneously and in tandem with the development of the National Land Information Service, which is an on-line system of access to a range of sources of information about property that are held in disparate places. NLIS provides a means of searching other registers that relate to property such as local authority registers of local land charges and the details of coal mines that are kept by the Coal Authority. It is worth emphasising that electronic conveyancing will employ well-established computer technology and it will be capable of operation from the personal computers that most practitioners already have. The move to electronic conveyancing will not require any great capital outlay by them.
Present conveyancing practice in relation to registered land
2.45 When it is executed, the transfer (or other disposition) operates only in equity until it is registered or entered in the register. In other words, the disposition creates an interest in registered land even before it is registered.[90] Furthermore, there is an inevitable hiatus between the disposition and its entry in the register and this so-called "registration gap" has been a source of problems.[91] When the relevant registration or entry in the register is made, it takes effect from the date on which, under rules, the application for registration is deemed to be delivered to the Registry.[92] This is so even though, in those more complicated transactions in which HM Land Registry raises requisitions, that date may be considerably earlier than the actual date of registration. In practice it is important that the disposition is taken to be registered from the date of deemed delivery of the application.[93] In complex transactions, it often takes some time to sort out matters such as cross-easements and other ancillary rights, and this tends to be done after the application has been submitted for registration.
2.46 The Land Registry only becomes involved in a transaction after a disposition has been made. It is only at that stage that problems come to light and requisitions are raised because applications are in some way found to be defective.[94]
Electronic conveyancing: the anticipated model Introduction
2.48 The way in which it is visualised that electronic conveyancing will operate is strikingly different.[95] Before examining how a typical dematerialised conveyancing transaction involving registered land[96] might work, two points should be emphasised.
(1) before the parties to a disposition of either
(a) registered land; or
(b) unregistered land that will trigger compulsory registration; conclude a contract that is to precede that disposition;[97] or if there is no such contract,[98]
(2) before the relevant disposition is made.
2.50 In many cases the disposition and, where title is already registered, its simultaneous registration will be the last stage of the conveyancing process. That means that all the conveyancing work must be completed by that date.[99] One of the intended objectives of the new system is to identify errors and discrepancies at the earliest possible stage, and to resolve any difficulties so far as possible before registration.[100]
2.51 The second point is that changes to the register will be made as a result of the actions of the solicitors or licensed conveyancers acting for the parties to the transactions. This is explained more fully below.[101] We also explain that do-it-yourself conveyancers will not be excluded from electronic conveyancing.[102]
How a typical conveyancing transaction might operate
2.52 The manner in which electronic conveyancing might operate may be illustrated by the example of a typical contract to sell a parcel of registered land and its subsequent completion. It should be stressed that this is necessarily tentative and that what eventually appears is likely to differ in some details at least from what is set out here.[103] The system is likely to be based on a secure electronic communications network that will only be accessible by contractually authorised professionals, whether those are solicitors, licensed conveyancers, estate agents or mortgage lenders.[104]The network will not just be used for the specifically legal stages of the transaction, but also for the provision of information about the property. It is also likely to be employed to co-ordinate and manage chains of transactions,[105] provided that those transactions are dispositions of registered land or are of a kind that will trigger the requirement of compulsory registration. It is anticipated that some body which might or might not be the Land Registry will be made responsible for managing chain sales in order to facilitate them. When a party instructs a solicitor or licensed conveyancer to act on his or her behalf in a purchase or sale of a property in circumstances in which there is likely to be a chain, that agent will be required[106] to notify the "chain manager" of the fact of that instruction. There will be further requirements for that agent to provide information to the chain manager as to the completion of the various pre-contractual stages of the transaction, such as investigating title, carrying out local searches, obtaining mortgage offers, etc. The chain manager will then be able to build up a picture of the chain and so that he can identify any persons in the chain who are delaying the process. This information will be made available via the secure Intranet to all parties in the chain. Although it is not anticipated that the chain manager will have any compulsive powers,[107] he will be able to encourage the offending parties to complete the steps that are still to be performed. There will inevitably be pressure from others in the chain who are ready to contract. The power to manage chains in this way is an important feature of our proposals on electronic conveyancing. Chains are a major cause of disquiet in the conveyancing process, particularly in relation to domestic conveyancing. By providing a means of controlling and expediting chains, the Bill should do much to alleviate the frustrations that are suffered by so many buyers and sellers of land. It is anticipated that it should prevent chains from collapsing.
2.53 When the parties have agreed the terms of the contract,[108] they will send a copy in electronic form to HM Land Registry, where it will be checked electronically. This will enable any discrepancies in the contract on matters such as property address, title number and seller's name to be identified at that stage and rectified before the contract is concluded.
2.54 The contract will be made in electronic form and signed electronically by the parties or their agents. It is anticipated that, under the Bill, estate contracts will be required to be protected in the register by the entry of a notice as a prerequisite to their validity. This noting in the register will occur simultaneously with the making of the contract and one effect of it will be to confer priority protection on the buyer.[109] The form of notice will have been agreed with the Registry in advance. The Registry will store the contract in electronic form and this is likely to be for a period that will be set in accordance with rules and is likely to reflect the nature of the contract.[110]
(1) the execution of the transfer and any charges in electronic form and their transmission to the Registry, where they will be stored;
(2) the registration of the dispositions so that the register conforms with the notional register previously agreed with the Registry; and
(3) the appropriate (and automatic) movement of funds[111] and the payment of stamp duty[112] and Land Registry fees.
2.57 As we have indicated above
(1) Changes to the register will be made automatically as a consequence of electronic documents and applications created by solicitors or licensed conveyancers, who are acting for the parties to the transactions.[113]
(2) Only those solicitors or licensed conveyancers who have been authorised to do so will be permitted to conduct electronic conveyancing.[114] The relationship with the Registry will be contractual, under a "network access agreement",[115] and the Registry will be obliged to contract with any solicitor or licensed conveyancer who meets the specified criteria.[116] Those specified criteria will be the subject of wide consultation and discussion with the relevant professional and other interested bodies. One of the important aims of those criteria is, as we explain in Part XIII of this Report, to raise the standards of conveyancing.[117]
2.58 However, it will also be noted from the examples given above,[118] that the Registry will still exercise a substantial measure of control over the registration process. This is because it will not be possible to change the register except in the form agreed in advance with the Registry.
Compulsory use of electronic conveyancing
(1) made by means of an electronic document;
(2) communicated in electronic form to the Registry; and
(3) simultaneously registered.[119]
2.60 This is a power that will not be exercised lightly. When solicitors and licensed conveyancers enter into network access agreements with the Registry, they will be required to conduct electronic conveyancing in accordance with network transaction rules.[120] Those transaction rules are likely to provide that the dispositions and contracts to make dispositions are made in the manner explained in the previous paragraph. In other words, those rules will ensure that electronic dispositions are simultaneously registered, which is the single most important technical objective of the Bill. However, as we explain in Part XIII of this Report,[121] it may be necessary to exercise the statutory power to secure that technical objective notwithstanding what can be done under the network transaction rules.[122]
2.61 There are, in any event, other reasons why the Bill has to contain a power to make electronic conveyancing compulsory. It is inevitable that the move from a paperbased to an all-electronic system of conveyancing will take some years and that the two systems will necessarily co-exist during this period of transition. However, that period of transition needs to be kept to a minimum for two principal reasons. The first is that it will be very difficult both for practitioners and for the Land Registry to have to operate two distinct systems side by side. Secondly, if electronic conveyancing is to achieve its true potential and deliver the savings and benefits that it promises, it must be the only system. This can be illustrated by the example of a typical chain of domestic sales. As we have indicated above, it will be possible to manage chains in an all-electronic system.[123] However, if just one link in that chain is conducted in the conventional paperbased manner, the advantages of electronic chain management are likely to be lost. A chain moves at the speed of the slowest link. A paper-based link is in its nature likely to be slower than an electronic one[124] and will not be subject to the scrutiny and controls of those links in the chain that are electronic and therefore managed. There must, therefore, be a residual power to require transactions to be conducted in electronic form. It is hoped that the eventual exercise of the power will be merely a formality because solicitors and licensed conveyancers will have chosen to conduct conveyancing electronically in view of the advantages that it offers to them and to their clients. Not only will it make the conduct of conveyancing easier and faster for them, but they will also have to compete with other practitioners who have elected to adopt the electronic system.
Finance
2.62 An effective system of electronic conveyancing requires not only that dispositions can be made and registered electronically but also that the necessary funds can be transferred simultaneously. The absence of any discussion of the funding arrangements in the Consultative Document caused concern to at least one respondent.[125] However, this aspect had not been overlooked. It was considered that any discussion of banking arrangements at that stage would have been hopelessly premature. The function of the Consultative Document was to raise the legal issues that had to be addressed in any reform of the land registration system and in the introduction of a system of electronic conveyancing. The creation of the supporting banking arrangements does not require legislation.[126]
2.63 HM Land Registry has in fact been exploring ways in which a system of banking arrangements to complement electronic conveyancing might be set up.[127] It has (for example) looked at the CREST system that applies to share dealings and has also been considering the possibility of an escrow bank. However, until a definite model of electronic conveyancing is settled in more detail than it has been to date,[128] it is unlikely that it will be possible to devise the necessary technical requirements that any banking system will have to meet.
Stamp duty
2.64 At present the Stamp Duty on land transactions depends upon the existence of documents in paper form.[129] On 8 November, 2000, the Inland Revenue announced that there would be legislation to extend the Stamp Duty regime to cover transfers of land that are made in electronic form. A technical advisory group, comprising members of the relevant representative organisations, has been set up to assist in taking this work forward. A comprehensive set of proposals, containing drafts of clauses, regulations and user guidance, will be published later this year.
Electronic conveyancing and first registration
(1) First, where first registration is triggered by a disposition of unregistered land, it will become possible to use one instrument that may be in electronic form, both to make the disposition and to apply for first registration.
(2) Secondly, where first registration is voluntary, it will be possible to make the application for registration in electronic form. However, whether first registration is compulsory or voluntary, the necessary muniments of title will still have to be sent to the Registry. The registrar will then have to satisfy himself as to the title before he registers it. Given the nature of the state guarantee of title, the continued involvement of the registrar on first registration is inevitable.
2.66 There may however be cases where, even in relation to first registrations, the disposition can be effected electronically and the registration made by the solicitor or licensed conveyancer acting for the disponee. This is likely to be the case in relation to the grant of short leases out of unregistered land. As we have explained above,[130] the requirement of compulsory registration will, under the Bill, be extended to leases granted for more than seven years. It is also anticipated that this period may be further reduced, perhaps to include all leases that are required to be made by deed. In relation to short leases there are unlikely to be complex issues of title. There is, therefore, no reason why they should not be granted and registered electronically.
2.67 Furthermore, in relation to dispositions of unregistered land that trigger compulsory first registration, it is anticipated that the secure electronic communications network could be used to provide information in relation to the transaction.[131]
Do-it-yourself conveyancing
ADVERSE POSSESSION Introduction
2.69 As the law stands, if a squatter is in adverse possession of land, he or she will usually extinguish the owner's title to that land after 12 years.[132] At that point, the squatter's title becomes unassailable, because no one has a better right to possess than he or she does.
2.70 As we have indicated above, the Bill introduces a new system of adverse possession applicable only to registered estates and registered rentcharges.[133] The changes that the Bill makes to the law of adverse possession are in fact scarcely less striking than those that it makes to the conveyancing process. There are two main reasons why we consider that we should introduce a new system. First, at the practical level, there is a growing public disquiet about the present law. It is perceived to be too easy for squatters to acquire title.[134] Perhaps precisely because it is so easy, adverse possession is also very common. Although the popular perception of a squatter is that of a homeless person who takes over an empty house (for whom there is understandable sympathy), the much more typical case in practice is the landowner with an eye to the main chance who encroaches on his or her neighbour's land. Secondly, as a matter of legal principle, it is difficult to justify the continuation of the present principles in relation to registered land. These two reasons are in fact interconnected.
Why do we have a doctrine of adverse possession?
2.71 The reasons why there is a doctrine of adverse possession are well known and often stated, but they need to be tested. For example, it is frequently said that the doctrine is an embodiment of the policy that defendants should be protected from stale claims and that claimants should not sleep on their rights. However, it is possible for a squatter to acquire title by adverse possession without the owner realising it. This may be because the adverse possession is either clandestine or not readily apparent.[135] It may be because the owner has more land than he or she can realistically police. Many public bodies fall into this category. A local authority, for example, cannot in practice keep an eye on every single piece of land that it owns to ensure that no one is encroaching on it.[136] But the owner may not even realise that a person is encroaching on his or her land. He or she may think that someone is there with permission[137] and it may take an expensive journey to the Court of Appeal to discover whether or not this is so.[138] In none of these examples is a person in any true sense sleeping on his or her rights. Furthermore, even if a landowner does realise that someone typically a neighbour is encroaching on his or her land, he or she may be reluctant to take issue over the incursion, particularly if it is comparatively slight. He or she may not wish to sour relations with the neighbour and is, perhaps, afraid of the consequences of so doing. It may not only affect relations with the neighbour but may also bring opprobrium upon him or her in the neighbourhood. In any event, even if the policy against allowing stale claims is sound, the consequences of it under the present law the loss for ever of a person's land can be extremely harsh and have been judicially described as disproportionate.[139]
2.73 In relation to land with unregistered title, there are cogent legal reasons for the doctrine. The principles of adverse possession do in fact presuppose unregistered title and make sense in relation to it. This is because the basis of title to unregistered land is ultimately possession. The person best entitled to the land is the person with the best right to possession of it. As we explain below, the investigation of title to unregistered land is facilitated (and therefore costs less) because earlier rights to possess can be extinguished by adverse possession.[140] However, where title is registered, the basis of title is primarily the fact of registration rather than possession.[141] It is the fact of registration that vests the legal title in the registered proprietor. This is so, even if the transfer to the proprietor was a nullity as, for example, where it was a forgery.[142] The ownership of land is therefore apparent from the register and only a change in the register can take that title away. It is noteworthy that, in many Commonwealth states which have systems of title registration, these considerations have led to changes in the law governing acquisition of title by adverse possession. In some states it has been abolished altogether. In others, it has been modified.[143] As we have indicated above,[144] the doctrine of adverse possession does have benefits and we do not therefore favour outright abolition in relation to registered land. However, we consider that the balance between landowner and squatter needs to be adjusted to overcome some of the deficiencies outlined above,[145] while maintaining the advantages it can offer. We have therefore devised a modified scheme of adverse possession that attempts to achieve that balance and is at the same time appropriate to the principles of registered title.[146]
An outline of the new scheme in the Bill
2.74 The essence of the new scheme in the Bill is that it gives a registered proprietor one chance, but only one chance, to terminate a squatter's adverse possession.[147] In summary, a squatter will be able to apply to be registered as proprietor after 10 years' adverse possession. The registered proprietor and certain other persons (such as a chargee) who are interested in the property will be notified of the application. If any of them object, the squatter's application will be rejected, unless he or she can establish one of the very limited exceptional grounds which will entitle him or her to be registered anyway. Of these exceptional grounds, the only significant one is where a neighbour can prove that he or she was in adverse possession of the land in question for ten years and believed on reasonable grounds for that period that he or she owned it. This exception is intended to meet the case where the physical and legal boundaries do not coincide. Even if the squatter's application is rejected, that is not necessarily the end of the matter. If the squatter remains in adverse possession for a further two years, he or she will be entitled to apply once more to be registered, and this time the registered proprietor will not be able to object. If the proprietor has been notified of the squatter's adverse possession and has been given the opportunity to terminate it within two years,[148] we consider that the squatter should obtain the land. It should be noted that our scheme places the onus on the squatter to take the initiative.[149] If he or she wants to acquire the land, he or she must apply to be registered. This is because the registered proprietor's title will never be barred by mere lapse of time. One point should be stressed about the provisions of the Bill on adverse possession. They are very carefully constructed to ensure that there is consistency between the way in which applications for registration are treated and what happens when the registered proprietor takes proceedings for possession against the squatter. The scheme stands or falls as an entity.
JUDICIAL PROVISIONS
2.75 The Bill makes one striking change to the judicial provisions that are presently applicable to land registration. It creates a new office, that of Adjudicator to HM Land Registry.[150] The Adjudicator will be appointed by the Lord Chancellor and he will be independent of HM Land Registry. His task will be to determine objections that are made to any application to the registrar that cannot be resolved by agreement.[151] The Adjudicator will be subject to the supervision of the Council of Tribunals.
RULES
2.76 Much of the process of land registration is, necessarily, conducted in accordance with rules made under the Land Registration Act 1925, of which there are several sets.[152] There are well over 300 such rules and they are amended regularly. They are concerned with the detail of how land registration is conducted and the flexibility that they have provided has enabled land registration to evolve from a system where transactions and searches were conducted in person at HM Land Registry in London to the present computerised system under which it is possible to search the register from a computer in an office anywhere. Rules are made by statutory instrument by the Lord Chancellor on the advice of the Rules Committee.[153] This is a body of experts, chaired by a High Court Judge, that scrutinises all rules before they are laid before Parliament. One problem with the present legislation is that there is not always a very clear demarcation between what is in the Land Registration Act 1925 and what is in the rules made under it. Some remarkably important matters are found in the rules.
2.77 The Bill follows the model of the present legislation in conferring extensive rulemaking powers on the Lord Chancellor to make land registration rules. These will, as now, relate to the technical aspects of how registered conveyancing is to be conducted forms of application, contents of notices, etc. As now, these rules will be subject to scrutiny by the Rules Committee, on whose advice the Lord Chancellor will continue to act.[154] However, the Bill strikes a much more principled balance between what is in rules and what is in primary legislation. The rule-making powers are also much more sharply defined.
2.78 The Bill confers other rule-making powers which relate to matters of substance, such as the possible reduction in length of leases that are registrable.[155] These rules will be made by the Lord Chancellor only after consultation and will be subject to annulment in pursuance of a resolution of either House of Parliament.[156]
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Note 1 See above, para 1.1. [Back] Note 2 See below, para 2.45 [Back] Note 3 Certain matters, such as the Land Registry, which is the subject of a short Part of the Report, require no comment here, as it is not the subject of any significant change. [Back] Note 4 See below, para 2.13. [Back] Note 5 See Land Registration Act 1925, ss 123, 123A. [Back] Note 6 See generally, Part III of this Report. [Back] Note 7 Such as fishing or shooting rights. [Back] Note 8 Such as the right to hold a market. [Back] Note 9 Cl 3; see below, paras 3.19, 3.20. [Back] Note 10 Cl 4; see below, paras 3.13-3.16. [Back] Note 11 Cl 116; see below, para 3.17. [Back] Note 12 See, eg, BPF/IPD, Annual Lease Review 2000, p 6: “Considerably shorter terms are evident in new lease agreements with almost three-quarters of new leases... now lasting just 15 years”. [Back] Note 13 Land Registration Act 1925, s 2. [Back] Note 14 This has a number of other consequences for land registration that the Bill also addresses: see paras 11.20 and following. [Back] Note 15 Cl 79; below, para 11.11. [Back] Note 16 Typically by persons building jetties and piers out into the sea. [Back] Note 17 See paras 2.69 and following. [Back] Note 18 Cl 127; below, para 3.5. This was prompted by our discussions with the Crown Estate, which is anxious to have this extension. [Back] Note 20 The change was made pursuant to the Land Registration Act 1988. [Back] Note 21 In particular, the protection that the Bill offers against acquisition of title by adverse possession: see below, paras 2.69 and following. [Back] Note 22 As a result of the changes made by the Land Registration Act 1997, it is cheaper to register land voluntarily than if compulsory registration is triggered by a disposition. [Back] Note 23 For cautions against first registration under the Bill, see paras 3.54 and following. For the relevant provisions of the Bill, see Cls 15-22. [Back] Note 24 See Land Registration Act 1925, s 53. [Back] Note 25 This prohibition takes effect two years after the Bill is brought into force. [Back] Note 26 There are, however, special provisions dealing with Crown land that is held in demesne: see paras 11.17 and following. [Back] Note 27 See above, para 2.1 (1). [Back] Note 28 For a case involving an ultra vires disposition of registered land by a charity, see Hounslow London Borough Council v Hare (1990) 24 HLR 9. [Back] Note 29 Cf State Bank of India v Sood [1997] Ch 276, 284. [Back] Note 30 See Cls 23, 26, 52. See below, paras 4.5-4.11 and 7.7, respectively. [Back] Note 31 For the future, the appropriate entry will be a restriction, because cautions are prospectively abolished: see below, paras 2.19 and following. [Back] Note 32 See Cls 26, 52. See below, paras 4.8-4.11 and 7.7, respectively. [Back] Note 33 If, for example, trustees sell land without obtaining the consent of a beneficiary that is required by the trust instrument, the transfer to the buyer will be unimpeachable. However, the trustees will remain liable for their breach of trust.
[Back] Note 35 Cl 27(2)(b)(i). [Back] Note 37 See above, para 2.6 [Back] Note 38 See Cl 28; below, para 5.5. [Back] Note 39 Cls 29, 30; below, paras 5.6 and following. [Back] Note 40 See below, para 2.59. [Back] Note 41 See Cls 113, 114; below, paras 5.26 and following. [Back] Note 42 Schedule 12, para 2(2)-(4). Cautions against dealings are not be confused with cautions against first registration which are, as we have explained above, retained under the Bill: see para 2.14. [Back] Note 43 Land Registration Act 1925, s 57. [Back] Note 44 See Cls 32-47, discussed in Part VI of this Report. [Back] Note 45 See Cl 32; below, para 6.6. [Back] Note 46 See Cl 40; below, para 6.34. [Back] Note 47 Cf above, para 2.15. [Back] Note 48 It will not be necessary to produce the land certificate or otherwise obtain the proprietor’s consent as it is now. [Back] Note 49 See Cls 35; 36; below, paras 6.26-6.31 [Back] Note 50 See Cl 45; below, para 6.56. [Back] Note 51 Cl 77; below, paras 6.28, 6.55. [Back] Note 52 See Part VII of the Report. [Back] Note 53 See Cl 49; below, paras 7.28 and following. [Back] Note 54 See Cl 50; below, para 7.40. [Back] Note 55 Land Registration Act 1925, s 70(1)(a). [Back] Note 56 Ibid, s 70(1)(g). [Back] Note 57 Ibid, s 70(1)(k). [Back] Note 58 See below, Part VIII. [Back] Note 59 See below, para 8.6. [Back] Note 60 At the end of that period, the interests in question would not be extinguished. But if they were not appropriately protected, they would be vulnerable. [Back] Note 61 See paras 2.41 and following. [Back] Note 62 See above, para 2.1 (2) and below, paras 2.59 and following. [Back] Note 63 See Part 6 of the Bill and below, Part IX of the Report. [Back] Note 64 See Cl 64 and below, paras 9.29-9.35, where we explain how this power will be made effective. [Back] Note 65 See above, para 2.1 (1). [Back] Note 66 Cl 69; below, paras 9.58-9.60. [Back] Note 67 See Schedule 10, para 4; below, paras 9.83-9.91. [Back] Note 68 See Part 7 of the Bill and below, Part XI of this Report. [Back] Note 69 The other provisions, such as those on bankruptcy, differ from the present law only in minor details. [Back] Note 70 See above, para 2.7. [Back] Note 71 Cf Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793, 798. [Back] Note 72 Cl 79; below, para 11.11. Such provision is needed because at common law the Crown cannot grant itself a fee simple. It cannot hold directly of itself as feudal tenant. [Back] Note 73 Cl 81; below, para 11.17. Grants by the Crown out of demesne land will, as now, be subject to the provisions on compulsory first registration: see Cl 80. [Back] Note 74 There are, we understand, in the region of 500 such cases every year and they normally arise out of the insolvency of a company. In such cases, the liabilities that affect the land normally exceed its value. [Back] Note 75 The Crown incurs no responsibility for escheated land unless the escheat has been completed by some act of entry or management by it in relation to the land. [Back] Note 76 Cl 82; below, paras 11.28 and following. [Back] Note 77 It was on occasions not possible to be sure what the relevant principles of law were. [Back] Note 78 Abolition of Feudal Tenure etc (Scotland) Act 2000. [Back] Note 79 They are in practice few, as the small number of successful claims for indemnity makes clear. [Back] Note 80 See Schedule 4; discussed in Part X of this Report. [Back] Note 81 See Schedule 8, discussed below, paras 10.29 and following. [Back] Note 82 Land Registration Act 1925, s 110(1)-(3), (5). Section 110 applies “on a sale or other disposition of registered land to a purchaser other than a lessee or chargee”. [Back] Note 83 Postal searches of the register were introduced in 1930. For their impact on conveyancing, see Alain Pottage, “The Originality of Registration” (1995) 15 OJLS 371. [Back] Note 84 Schedule 10, para 2; below, para 12.8. [Back] Note 85 For an explanation of the provisions governing electronic conveyancing, see Part XIII of this Report. For the relevant provisions of the Bill, see Cls 91-94; Schedule 5. [Back] Note 86 Cf Ruoff & Roper, Registered Conveyancing, 1-11. [Back] Note 87 For the conditions of use, see Ruoff & Roper, Registered Conveyancing, F-11, F-12. [Back] Note 88 Land Registration Rules 1925, r 151A. [Back] Note 89 See Land Registration Rules 2001, SI 2001 No 619. [Back] Note 90 This is reflected in the rule that governs the priority of competing minor interests, namely that such an interest takes its priority from the date of its creation and not from the date of its protection in the register. See Law Com No 254, para 7.17. [Back] Note 91 Rights may be created in relation to, or dispositions may be made of, the land during the period. For some examples of these difficulties, see Abbey National Building Society v Cann [1991] 1 AC 56; Brown & Root Technology Ltd v Sun Alliance and London Assurance Co [2000] 2 WLR 566. [Back] Note 92 Land Registration Rules 1925, r 83 [Back] Note 93 From our discussions we are aware that this is particularly the case in relation to conveyancing transactions that are fiscally driven (and which have to be registered before the start of the next fiscal year) and in complex commercial property transactions. [Back] Note 94 Cf Land Registration Rules 1925, r 317. About 50% of applications are defective in some way or another. Fewer mistakes occur with the new-style land registry forms, which are likely to be the model for electronic instruments. [Back] Note 95 See generally Steve Kelway, “Etherlinks in the conveyancing belt”Estates Gazette, 2 December 2000, p 104. Mr Kelway is the General Counsel to the E-Conveyancing Taskforce at HM Land Registry. [Back] Note 96 For electronic conveyancing and applications for first registration, see below, para 2.65. [Back] Note 97 In other words, an estate contract such as a contract to sell land. [Back] Note 98 As where a registered proprietor intends to charge his land, or where (as is commonly the case) there is to be a lease without any prior agreement for a lease. [Back] Note 99 Ironically, this will bring the registered system into line with what formerly happened with unregistered conveyancing, where the deed of conveyance was the final stage of the conveyancing process. Many dispositions of unregistered land now trigger compulsory registration, so that the deed of conveyance is no longer the final stage. There has to be an application for first registration and the registrar will need to be satisfied as to the title before he can register the disposition. See Ruoff & Roper, Registered Conveyancing, 12-45. [Back] Note 100 We have been told by many practitioners that it is not always possible for them to finalise the details of ancillary rights (typically cross-easements) in a complex conveyancing transaction and that such matters are presently resolved after the application for registration is made. However, in future, such matters could be resolved by contract between the parties. That contract will be protected in the register, so that its priority is preserved. When the details are finalised between the parties, the easements or other rights can then be entered in the register. [Back] Note 101 See below, para 2.57. [Back] Note 102 See below, para 2.68. [Back] Note 103 Formal consultation on the Land Registry’s model for electronic conveyancing is planned for the autumn of this year. [Back] Note 104 The extent to which professionals may be permitted to access the secure Intranet will obviously depend on their role. [Back] Note 105 In particular a chain of house sales. There may be no need for “chain management” in relation to a chain of commercial transactions. [Back] Note 106 The basis of this requirement will be contractual. [Back] Note 107 Indeed, it is not easy to see what effective forms of compulsion there could be. [Back] Note 108 The draft contract will be an electronic document. [Back] Note 109 See Cl 72(6)(a)(ii) of the Bill, below, para 9.68. [Back] Note 110 In the case of a normal estate contract, the period of storage is likely to be comparatively short. This is because most contractual obligations are merged on completion. Where the contract is likely to have a longer life, such as an option or a right of pre-emption, the period of storage will be longer. It will be possible to obtain official copies of such contracts. [Back] Note 111 See below, para 2.62. [Back] Note 112 See below, para 2.64. [Back] Note 113 See para 2.51. [Back] Note 114 See para 2.52. [Back] Note 115 For such agreements, see Schedule 5, para 1; below, para 13.36. [Back] Note 116 The criteria are necessary to ensure the integrity of the register. For the criteria, see Schedule 5, para 10; below, paras 13.40 and following. [Back] Note 117 See below, para 13.42. [Back] Note 118 See paras 2.54, 2.55. [Back] Note 119 Cl 93; below, para 13.75. [Back] Note 120 See Schedule 5, paras 2, 5; below, paras 13.47, 13.52. [Back] Note 121 See below, paras 13.74 and following. [Back] Note 122 This could be quite important in relation to priorities: see above, para (2). [Back] Note 123 See para 2.52. [Back] Note 124 Because it will not be able to take advantage of the time-saving features that electronic conveyancing will be able to offer. [Back] Note 125 The Conveyancing and Land Law Committee of The Law Society. [Back] Note 126 The Uncertificated Securities Regulations 1995, SI 1995 No 3272, which created the legal framework for CREST, the system for the electronic transfer of and settlement of trades in securities, say nothing about the supporting banking arrangements. [Back] Note 127 It has been in discussion with representatives of the lending industry. [Back] Note 128 For the timetable for the introduction of electronic conveyancing, see above, para 2.52. [Back] Note 129 See Stamp Act 1891, ss 3, 122(1); Finance Act 1999, s 112(3); Schedule 13. [Back] Note 131 This would be particularly important in relation to chain sales. See above, para 2.52. [Back] Note 132 See Limitation Act 1980, ss 15, 17. This will not always be so. If, for example, he or she has been in adverse possession of leasehold land, the tenant’s title will have been extinguished, but not the landlord’s. The squatter will have to remain in adverse possession for a further 12 years after the duration of the period of the lease. [Back] Note 133 See above, para (3). See Part XIV of this Report for the discussion of adverse possession. [Back] Note 134 See below, paras 14.1, 14.2. [Back] Note 135 As where a squatter takes over a basement or a cellar: Rains v Buxton (1880) 14 ChD 537. [Back] Note 136 The leading modern case Buckinghamshire County Council v Moran [1990] Ch 623 [1990] Ch 623 involved a wealthy businessman who enclosed a piece of land that was owned by a County Council and was being kept by them as a “land bank” for future road widening purposes. [Back] Note 137 Particularly where the person is a neighbour. [Back] Note 138 For a striking recent illustration, see J A Pye (Oxford) Holdings Ltd v Graham [2001] EWCA Civ 117; [2001] 2 WLR 1293, below, para 14.1, where the issue was whether what had initially been possession under licence (in that case a grazing licence) had ceased to be so. [Back] Note 139 J A Pye (Oxford) Holdings Ltd v Graham [2000] Ch 676, 710, per Neuberger J (at first instance) [Back] Note 140 See below, para 14.2, and see generally Law Com No 254, paras 10.5-10.10. [Back] Note 141 See Law Com No 254, para 10.11. [Back] Note 142 See Land Registration Act 1925, s 69(1) (present law); Cl 58(1) (under the Bill); below, para 9.4. [Back] Note 143 See Law Com No 254, para 10.17. [Back] Note 144 See para 2.72. [Back] Note 145 See para 2.71. [Back] Note 146 Our starting point was the law applicable in Queensland, but our eventual model is very different. [Back] Note 147 See below, Part XIV [Back] Note 148 Either by taking possession proceedings to recover the land or by reaching an agreement with the squatter that he or she will become the owner’s tenant or licensee. [Back] Note 149 This is a significant point in a case involving neighbours. A neighbour cannot be criticised for objecting to such an application and acting upon it, where he or she might have been regarded as a trouble maker if he or she had taken steps on his or her own initiative against the encroaching neighbour. See above, para 2.71. [Back] Note 150 See Part 11 and Schedule 9 of the Bill; and see Part XVI of the Report. [Back] Note 151 See Cls 73, 106. These functions are presently performed by the Solicitor to HM Land Registry. [Back] Note 152 Land Registration Rules 1925; Land Registration (Open Register) Rules 1991; Land Registration (Official Searches) Rules 1993; Land Registration (Overriding Leases) Rules 1995; Land Registration (Matrimonial Home Rights) Rules 1997; Land Registration (Hearings Procedure) Rules 2000. [Back] Note 153 Land Registration Act 1925, s 144(1). [Back]
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