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Cite as: [2001] EWLC 271(4)
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PART IV DISPOSITIONS OF REGISTERED LAND
INTRODUCTION
4.1 In this Part we examine two matters:
(1) the powers of disposition of a registered proprietor or a person who is entitled to be registered as proprietor; and
(2) the dispositions of a registered estate or charge that are required to be registered.
POWERS OF DISPOSITION
Introduction
4.2 In Part IX of this Report, we explain that there are at least four ways in which a title to land may, in some way, be defective and we summarise how the Bill deals with each of them.[1] The matters are as follows
(1) the person who appears to be owner may not be;
(2) the owner may have limited powers and may make a disposition that he or she has no power to make;
(3) the property may be subject to incumbrances; and
(4) events may occur which mean that a registered proprietor's estate has become determinable.
4.3 Our concern here is with the situation in paragraph 4.2(2). A registered proprietor's powers of disposition may be limited, for example, by statute (perhaps because it is a statutory body), if it is a corporation, by its public documents, or where the proprietors are trustees, by the terms of the trust upon which they hold the land. At present it is not entirely clear what powers of disposition a proprietor of a registered estate is to be taken to have.[2] In State Bank of India v Sood,[3] Peter Gibson LJ cited with approval a statement in the standard textbook on registered land that in registered conveyancing it is fundamental that any registered proprietor can exercise all or any powers of disposition unless some entry on the register exists to curtail or remove those powers…. [4] This may be illustrated by the provisions of the Land Registration Act 1925 and the Land Registration Rules 1925 that relate to trusts. Any limitations on the powers of the tenant for life (where the land is settled) or the trustees (where the land is held on a trust of land) should be protected by the entry of a restriction.[5] The necessary implication from these provisions is that the powers of the tenant for life or trustees would otherwise be unfettered. Similarly, the registrar may enter a restriction where the dispositionary powers of a registered proprietor are limited by statute or where there are limitations on the powers of a corporation or of personal representatives.[6] We consider that the principle stated by Peter Gibson LJ should be the correct one. It means that a person can rely upon the register to tell him or her whether there are any limitations on the powers of a registered proprietor and can safely act in reliance upon it. However, the present legislation does not explicitly state that principle. Indeed, in at least one case, there has been an attempt to rectify the register against a buyer, where
(1) the disposition to her was one that, by statute, the seller had no power to make; but
(2) the register was silent as to this fact.[7]
The principles adopted in the Bill
4.4 The Bill lays down the following principles
(1) A registered proprietor (or a person who is entitled to be registered as proprietor) should be taken to have unlimited dispositive powers.
(2) If those powers are in fact limited for whatever reason, that limitation should be reflected by an entry on the register.
(3) If there is no entry, any disponee is entitled to assume that there are no limitations on the powers of the disponor.
(4) If there were in fact limitations on the disponor's powers that were not reflected by an entry on the register, the disponee's title cannot be called into question. However, the disposition will not be rendered lawful. The consequences of acting beyond his or her powers can therefore be visited upon the disponor. The disponee may not escape liability if he or she was privy to the disponor's conduct.
In the following paragraphs, we explain these points in more detail.
The provisions of the Bill
Owner's powers
(1) the registered proprietor of an estate or charge; or
(2) entitled to be registered as the proprietor.[8]
The right conferred by (2) is subject to rules.[9]
4.6 By Clause 23, owner's powers consist of power
(1) to make a disposition of any kind permitted by the general law in relation to the interest which the person has, other than a mortgage by demise or sub-demise (in the case of a registered estate) or a legal sub-mortgage[10] (in relation to a registered charge); and
(2) to charge the estate at law with the payment of money (in the case of a registered estate) or to charge at law with the payment of money, indebtedness that is secured by the registered charge.[11]
4.7 As regards the exception of a mortgage by demise or sub-demise in (1), in the Consultative Document,[12] we recommended that because such mortgages were in practice obsolete, they should be prospectively abolished in relation to charges over registered land. This proposal was supported by all but one of those who responded to the point. Clause 23 implements this recommendation.[13] Both the exception for a legal sub-mortgage in (1) and the reason for the express powers mentioned in (2) are explained in the context of charges in Part VII of this Report.[14]
Protection for disponees
4.8 Clause 26 provides protection for disponees.[15] As a general principle, a person's right to exercise owner's powers in relation to a registered estate or charge is to be taken to be free from any limitation affecting the validity of a disposition.[16] However, that does not apply to a limitation reflected by an entry in the register, or imposed by or under the Bill.[17] For the future, a limitation on owner's powers will be made by the entry of a restriction.[18] At present it is also possible to limit owner's powers by the entry of a caution or an inhibition. As we explain in Part VI
(1) both cautions and inhibitions are prospectively abolished under the Bill;
(2) existing cautions will remain on the register;[19] and
(3) although existing inhibitions will remain on the register, they will be treated thereafter as restrictions.[20]
4.9 This general principle that a person's right to exercise owner's powers is unlimited unless there is some entry in the register or limitation imposed by, or under, the Bill, has effect for one specific purpose only. This is to prevent the title of the disponee being questioned.[21] It follows that, if the person exercising owner's powers did not have unlimited powers, but there was no entry in the register to reflect this fact
(1) the disponee's title could not be challenged; but
(2) the disposition would not be rendered lawful.
Those two points merit further explanation.
(1) W and X held land on a bare trust as nominee for Y, on terms that they could not make any disposition of the land without Y's written consent;
(2) Y, who was in actual occupation of the land held in trust, did not protect her interest by the entry of a restriction; and
(3) W and X fraudulently charged the land to Z without Y's consent in breach of trust;
Z's charge would be valid and could not be called into question by Y. The fact that Y was in actual occupation at the time of the charge would not change this, because W and X's right to exercise owner's powers is taken to be free of limitation. It follows that Y cannot claim that her beneficial interest under the trust was an overriding interest[22] because her prior consent to the charge was not obtained.
4.11 Secondly, where the disposition is in fact unlawful, the consequences of that unlawfulness can be pursued so long as these do not call into question the validity of the disponee's title. The example may be given of trustees of land, A and B, who had limited powers of disposition,[23] but who failed to enter a restriction on the register to reflect this fact. If they transferred the land to a buyer, C, in circumstances that were prohibited by the trust, they would commit a breach of trust. Furthermore, although C's title could not be impeached, the protection given by Clause 26 does not extend to any independent forms of liability to which she might be subject. Thus if C knew of the trustees' breach of trust when the transfer was made, she might be personally accountable in equity for the knowing receipt of trust property transferred in breach of trust.[24]
REGISTRABLE DISPOSITIONS
Introduction
4.12 Clause 27 is one of the most important in the Bill. It defines those dispositions of registered land that must be completed by registration. It corresponds to, but is not identical with, similar provisions in the Land Registration Act 1925.[25] Registrable dispositions have a particular significance under the Bill (as indeed do their equivalents called "registered dispositions" -under the Land Registration Act 1925[26]). Not only do they take effect at law as legal estates, but they are also given special priority, as we explain in Part V of this Report.[27]
The general principle
4.13 The general principle, stated in Clause 27(1), is that if a disposition of a registered estate or charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met. We explain below which dispositions are registrable and the registration requirements that apply in relation to each of them.[28] When electronic conveyancing has been introduced, this general principle is likely, in time, to be superseded. This is because it will not apply to dispositions which are required to be communicated electronically to the registrar and simultaneously registered under Clause 93,[29] a provision that we explain in Part XIII of this Report.[30] The reason why the general principle in Clause 27(1) has to be disapplied is because under 93, a disposition has no effect whatever, either at law or in equity, until the registration requirements are met.[31]
4.14 It will be apparent from the general principle that the concept of a registrable disposition is concerned with those dealings with registered land that transfer or create legal estates. In principle, there must be a presumption that all dispositions of registered land that themselves create or transfer a legal estate should be subject to some form of registration, whether with their own titles or by the entry of some form of notice on the title which is subject to them.[32] Under the Bill there are necessary exceptions to this general rule (as there are under the Land Registration Act 1925), but they are kept to a minimum. It is because registrable dispositions, when registered, confer a legal estate that they are given special priority,[33] much as dispositions of legal estates enjoy special priority in unregistered conveyancing.[34]
4.15 Under the Bill, a registrable disposition of a registered estate or charge only has effect if it complies with such requirements as to form and content as rules may provide.[35] This is, in other words, a power to prescribe the form and content of any registrable disposition. Under the present law, it is not possible to prescribe the form of a registered charge,[36] nor has any form ever been prescribed for a lease, though it could be.[37]
Dispositions required to be registered and the registration requirements that apply to them
Introduction
4.16 The Bill lists the dispositions that are required to be completed by registration[38] and, in Schedule 2, it sets out what the registration requirements are for the specified dispositions.[39] Although the range of dispositions that are registrable appears at first sight to be complex, the effect of the provisions is in fact straightforward and can be summarised as follows. Subject to certain limited exceptions,[40] any transfer of, or the grant or reservation of any legal estate out of, registered land,[41] is a registrable disposition. This is in accordance with the policy, explained above in paragraph 4.14, that all dispositions of registered land that transfer or create a legal estate should, in principle, be registrable unless there are good reasons why this should not be the case. The dispositions that are subject to compulsory registration include dispositions by operation of law, but with certain limited exceptions.[42]
Transfers of a registered estate
4.17 Subject to the exceptions mentioned below in paragraph 4.19, any transfer of a registered estate must be completed by registration.[43] A registered estate is a legal estate the title to which is entered in the register other than a registered charge.[44] The following are the registered estates which may or (in some cases) must have their own titles on the register-
(1) a fee simple absolute in possession;[45]
(2) a leasehold estate that may be registered with its own title;[46]
(3) a rentcharge;[47]
(4) a franchise;[48]
(5) a profit à prendre in gross;[49] and
(6) a manor.[50]
4.18 The transferee (or his or her successor in title) must be entered in the register as proprietor.[51] Where there is a transfer of part only of a registered estate, such details as may be provided for by rules, must be entered in the register in relation to the registered estate out of which the transfer is made.[52] The Registry makes certain entries on the register of a registered estate in a case where the proprietor disposes of part of it, for example, as to rights reserved or granted. It is anticipated that the practice is unlikely to be different under the Bill.
(1) The first is a transfer on the death of a sole individual proprietor.[53] Title to the deceased's estate vests by operation of law in his or her executors (if any) or in the Public Trustee until such time as there is a grant of administration. Once the legal title is vested in the personal representatives, they may apply to the registrar[54] to alter the register to bring it up to date by registering the applicant as proprietor.[55]
(2) The second is a transfer on the bankruptcy of a sole individual proprietor.[56] When an individual becomes insolvent, his or her estate will vest without any conveyance or transfer in his or her trustee in bankruptcy, immediately on his or her appointment (or in the Official Receiver in default of any such appointment).[57] Once again, the trustee in bankruptcy may then apply to the registrar to alter the register to bring it up to date by registering the applicant as proprietor, as in (1).
(3) The third is a transfer on the dissolution of a sole corporate proprietor.[58] When a company is dissolved, its property is deemed to be bona vacantia and therefore vests in the Crown (or one of the Royal Duchies).[59] The Crown (or Duchy) may apply to the registrar to alter the register to bring it up to date by registering the applicant as proprietor, again as in (1).
These exceptions also apply to the transfer of registered charges, which are explained below, at paragraph 4.30(1).
The grant of certain leases
(1) leases granted for more than seven years from the date of the grant;[60]
(2) reversionary leases that are to take effect in possession more than three months after they have been granted;[61]
(3) discontinuous leases;[62]
(4) leases granted in pursuance of the right to buy provisions of Part V of the Housing Act 1985;[63] and
(5) leases granted in circumstances where section 171A of the Housing Act 1985 applies.[64]
It is unnecessary to comment on these categories of leases because an explanation has already been given in relation to them in Part III of this Report.[65] It may be noted that, as regards (1), there is a power for the Lord Chancellor, after consultation, to reduce further the period of seven years by order.[66]
4.21 Where a lease is a registrable disposition, the grantee of the lease or his or her successor in title must be entered in the register as the proprietor of the lease, and a notice in respect of the lease must also be entered.[67]
4.22 It will be clear from paragraph 4.20 that the grant of most leases is a registrable disposition. There are, however, two categories of lease granted out of a registered estate that are not registrable. The first, which follows from what has been said above,[68] is a lease granted for seven years or less unless it falls within one of the classes of lease listed in paragraph 4.20(2)-(5). The second is a PPP lease[69] -in essence a lease of an underground railway and ancillary property -granted under the Greater London Authority Act 1999.[70] As we have indicated above,[71] in principle all dispositions of registered land that create a legal estate should be required to be registered. As regards these two types of lease, there are policy reasons why they are not registrable, but take effect instead as overriding interests. We say more about both types of lease[72] and the policy reasons for excluding them from the requirement of registration[73] in Part VIII of this Report.
Leases of franchises and manors
4.23 So far as we are aware, it would not now be possible to create new manors. Even if it were, as we have explained, such a manor could not be registered with its own title under the Bill.[74] Although the Crown might, in the exercise of its prerogative, grant a new franchise in fee simple, that would be a grant of an unregistered legal estate. As such, it would be subject to the provisions on voluntary first registration that we have already explained.[75] It follows that the Bill does not need to make provision for the creation of manors or franchises as registrable dispositions. However, it does need to make provision in relation to the grant of a lease of a manor or franchise which is itself a registered estate. Under the Bill, where the registered estate is a franchise or a manor, any lease of that estate is a registrable disposition.[76] The nature of such incorporeal rights is such that the existence of a lease of them may not be apparent to any person dealing with the land affected unless it is registered. The registration requirements vary according to whether the lease is for a term of-
(1) more than seven years; or
(2) seven years or less;
from the date of grant. As regards (1), the grantee of the lease or his or her successor in title must be entered in the register as the proprietor of the lease, and a notice in respect of the lease must also be entered.[77] As regards (2), a notice in respect of the lease must be entered in the register.[78]
Express grant or reservation of an easement, right or privilege
4.24 The express grant or reservation of an interest of a kind falling within section 1(2)(a) of the Law of Property Act 1925, other than one which is capable of being registered under the Commons Registration Act 1965, is a registrable disposition.[79] Section 1(2)(a) of the Law of Property Act 1925 refers to-
an easement, right or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute...
4.25 The interests that will be registrable will be easements and profits à prendre, whether those are in gross or are appurtenant to an estate.[80] There are two qualifications to this. First, rights of common which are capable of being registered under the Commons Registration Act 1965 are excluded. This is because the Commons Registration Act 1965 prohibits the registration under the Land Registration Act 1925 of rights of common that are registrable under the 1965 Act.[81] This prohibition will continue under the Bill.[82] Secondly, where an easement, right or privilege is granted through the operation of section 62 of the Law of Property Act 1925,[83] that grant is not regarded as an express grant for these purposes, so as to require registration. Section 62 is a so-called "wordsaving provision" that is taken to import certain words into a conveyance of land unless its effect is excluded.[84] It is therefore treated for some purposes at least as a form of express grant,[85] though in practice it tends to operate without an appreciation of its effect by the parties to the conveyance.[86]
4.26 The registration requirements will depend upon the nature of the grant or reservation.
(1) Where the disposition involves the creation of a legal profit à prendre in gross with its own title,[87] whether that grant is for an interest equivalent to an estate in fee simple or for a term of years for more than seven years-
(a) the grantee or his or her successor in title must be entered in the register as the proprietor of the interest created; and
(b) a notice in respect of the profit must also be entered in the register.[88]
(2) Where the disposition involves the grant or reservation of any other interest falling within those listed in paragraph 4.25,[89] a notice in respect of the interest must be entered in the register. Furthermore, where the interest is for the benefit of a registered estate, the registered proprietor must be entered in the register[90] as the proprietor of the interest.[91]
Express grant or reservation of rentcharge or legal right of re-entry
4.27 The express grant or reservation of the following types of interest are registrable dispositions-(1) a rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute; and (2) a right of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose to a legal rentcharge.[92] As we have explained in Part III of this Report, the circumstances in which a rentcharge can now be created are in fact very limited.[93]
4.28 The registration requirements are as follows-
(1) Where the disposition involves the creation[94] of a legal rentcharge with its own title, whether that grant is for an interest equivalent to an estate in fee simple or for a term of years for more than seven years-
(a) the grantee or his or her successor in title must be entered in the register as the proprietor of the interest created; and
(b) a notice in respect of the rentcharge must also be entered in the register.[95]
(2) In every other case -in other words where a rentcharge is granted or reserved for a term not exceeding seven years, or in any case where a right of entry is reserved -a notice in respect of the interest must be entered in the register.[96] Where the interest is for the benefit of a registered estate, the registered proprietor must also be entered in the register[97] as the proprietor of the interest.[98] However, there is a power to modify these registration requirements by rules in relation to a right of entry over or in respect of a term of years absolute.[99] It is not the current practice of HM Land Registry to record the benefit of a right of entry on the title of the reversion to a lease. That practice may change in the future, but the power to modify the requirements means that the present position can be maintained.
The grant of a legal charge
4.29 The grant of a legal charge is a registrable disposition.[100] To register the charge, the chargee or his or her successor in title must be entered in the register as its proprietor.[101] By way of an exception, the creation of a legal charge that is also a local land charge does not require registration.[102] The reasons for this exception are more fully explained in Part VII of this Report,[103] but may be summarised as follows-(1) local land charges take effect as overriding interests, and are, therefore, binding on any disponee of registered land without registration;[104] but (2) those local land charges that are charges on land to secure the payment of money, cannot be enforced as charges unless and until they are registered.[105] It follows, therefore, that such local land charges are not required to be registered when created, but must be registered as charges prior to realisation.
Dispositions of a registered charge
4.30 There are two types of disposition of a registered charge that are registrable dispositions.
(1) The first is a transfer of the charge.[106] The registration requirement is that the transferee or his or her successor in title must be entered in the register as proprietor.[107]
(2) The second is the creation of a sub-charge.[108] In this case, the sub-chargee, or his or her successor in title must be registered as the proprietor of the sub-charge. We explain the nature of sub-charges in Part VII of this Report.[109]
Applications for registration
4.31 As might be expected, the Bill confers power for rules to make provision about applications to the registrar for the purposes of meeting registration requirements under Clause 27.[110] It should be noted that, under the present law, where the proprietor's land certificate is outstanding,[111] it has to be produced to the registrar on the application for the registration of a disposition of registered estate or charge.[112] As we explain in Part IX of this Report, this requirement is unlikely to apply under any rules made pursuant to the power mentioned above.[113] There is no provision in the Bill for the issue of charge certificates (which will therefore cease to have any function),[114] and although land certificates will continue to be issued, their role is likely to be much more limited than at present.[115]
Ü Þ
Note 1 See below, paras 9.29-9.35. [Back] Note 2 The Land Registration Act 1925 contains numerous, very specific provisions as to what a registered proprietor can do with the estate or charge vested in him or her. When taken together, he or she appears to have the same powers as the owner of a legal estate where title to the land is unregistered. [Back] Note 3 [1997] Ch 276, 284. [Back] Note 4 The quotation came from the looseleaf edition Ruoff & Roper, Registered Conveyancing, para 32-05, as it then was. [Back] Note 5 See in relation to settlements, Land Registration Act 1925, s 86(3); Land Registration Rules 1925, rr 56-58, 104, Schedule 2, Forms 9-11; and for trusts of land, Land Registration Act 1925, s 94(4); Land Registration Rules 1925, rr 106A, 236, Schedule 2, Form 11A. [Back] Note 6 Land Registration Rules 1925, r 236A. [Back] Note 7 Hounslow London Borough Council v Hare (1990) 24 HLR 9. Fortunately, the attempt was unsuccessful. [Back] Note 9 Cl 24(2). Such rules are likely to explain how owner’s powers are to be exercised in such a case. They will be land registration rules, made by the Lord Chancellor, and will be laid before Parliament only: Cls 125(3), 129(1). It should be noted that, under Land Registration Act 1925, s 37, a person who is entitled to be registered as proprietor, may, in the prescribed manner, dispose of the registered estate or charge before he or she is registered as proprietor of it. [Back] Note 10 A legal sub-mortgage is, for these purposes, a transfer by way of mortgage, a sub-mortgage by sub-demise, and a charge by way of legal mortgage: Cl 23(3). [Back] Note 11 Cl 23(1) (registered estates), (2) (registered charges). [Back] Note 12 Law Com No 254, para 9.5. [Back] Note 13 See further below, para 7.3. [Back] Note 14 In relation to sub-mortgages, see below, para. 7.11. As regards the power to charge with the payment of money, see below, paras 7.2-7.4. [Back] Note 15 Cf Cl 52; below, paras 7.7, 7.8. [Back] Note 17 Cl 26(2). For the restrictions imposed by the Bill, see Cls 24(2) (right to exercise owner’s powers subject to rules; above, para 4.5) and 25 (obligation to comply with registration requirements; below, para 4.15). [Back] Note 18 See below, para 6.40. [Back] Note 19 See below, para 6.3. [Back] Note 20 See below, para 6.32. [Back] Note 22 Under Schedule 3, para 2 (interests of persons in actual occupation); see below, para 8.54. [Back] Note 23 Cf Trusts of Land and Appointment of Trustees’ Act 1996, s 8. [Back] Note 24 For the most recent utterance as to degree of knowledge required for knowing receipt, see Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2000] 3 WLR 1423. It seems unlikely to be the final word on the subject. [Back] Note 25 See in particular ss 18 and 21. [Back] Note 26 Cf Land Registration Act 1925, s 3(xxii). [Back] Note 27 See below, paras 5.6 and following. [Back] Note 28 See below, paras 4.16 and following. [Back] Note 30 See below, paras 13.74 and following. [Back] Note 31 Cl 93(2). See below, para 13.84. [Back] Note 32 Cf above, para 1.5 [Back] Note 33 Cls 29, 30; below, paras 5.6 and following. [Back] Note 34 Cf Megarry & Wade’s Law of Real Property (6th ed 2000), 4-061. [Back] Note 35 Cl 25(1). The rules will be land registration rules, and will be laid before Parliament only: Cls 125(3), 129(1). Rules may apply Cl 25(1) to any other kind of disposition which depends for its effect on registration: Cl 25(2). [Back] Note 36 See Land Registration Act 1925, s 25(2). [Back] Note 37 See Land Registration Act 1925, ss 18(1), 21(1). [Back] Note 40 See below, paras 4.19, 4.22 , 4.29. [Back] Note 41 Registered land means a registered estate or a registered charge: Cl 129(1). [Back] Note 42 See Cl 27(5); below, paras 4.19, 4.29. [Back] Note 45 See above, para 3.9. [Back] Note 46 See above, paras 3.10-3.13, 3.30-3.34; and below, paras 4.20 and following. [Back] Note 47 See above, para 3.18; and below, para 4.27. [Back] Note 48 See above, para 3.19; and below, para 4.24. [Back] Note 49 See above, para 3.20; and below, para 4.26. [Back] Note 50 See above, para 3.21. [Back] Note 51 Schedule 2, para 2(1). [Back] Note 52 Ibid, para 2(2). The rules will be land registration rules, and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 54 See Schedule 4, para 7; below, para 10.20. [Back] Note 55 Under Schedule 4, para 5(b); below, para 10.19. [Back] Note 57 Insolvency Act 1986, s 306. [Back] Note 59 Companies Act 1985, s 654. The property falls to be administered by the Treasury Solicitor:ibid, s 656. [Back] Note 60 Cl 27(2)(b)(i). Cf above, para 3.30. [Back] Note 61 Cl 27(2)(b)(ii). Cf above, para 3.32. [Back] Note 62 Cl 27(2)(b)(iii). Cf above, para 3.11. [Back] Note 63 Cl 27(2)(b)(iv). Cf above, para 3.33. [Back] Note 64 Cl 27(2)(b)(v). Cf above, para 3.34. [Back] Note 65 Any lease which, if granted out of unregistered land, either may or must be registered, will, if granted out of registered land, be a registrable disposition. [Back] Note 66 Cl 116(1)(d), (3). Any such order is to be made by statutory instrument that is subject to annulment in pursuance of a resolution of either House of Parliament: Cl 125(4). Cf above, paras 3.17, 3.30. [Back] Note 67 Schedule 2, para 3. [Back] Note 68 See para 4.20(1). [Back] Note 72 See Schedule 3, para 2; Cl 90(5); below, paras 8.11-8.13, 8.48, 8.50. [Back] Note 73 See below, paras 8.9, 8.13, 8.50. [Back] Note 74 See above, para 3.21. [Back] Note 75 See above, para 3.19. [Back] Note 77 Schedule 2, para 4. [Back] Note 78 Schedule 2, para 5. [Back] Note 80 Cl 27(2)(d) may include other incorporeal hereditaments, but this is, in practice, very unlikely. This is because the Bill makes express provision in relation to the grant of a lease of manor or a franchise (see above, para 4.23). The grant or reservation of rentcharges is not within Law of Property Act 1925, s 1(2)(a), but s 1(2)(b). Rentcharges are dealt with by Cl 27(2)(e): see below, para 4.27. [Back] Note 81 Commons Registration Act 1965, s 1(1). [Back] Note 82 Cf Schedule 11, para 7. [Back] Note 84 For Law of Property Act 1925, s 62, and its operation, see Megarry & Wade’s Law of Real Property (6th ed 2000), 18-108 and following. [Back] Note 85 See Quicke v Chapman [1903] 1 Ch 659; Megarry & Wade’s Law of Real Property (6th ed 2000), 18-113. [Back] Note 86 For a striking recent example of this, see Hair v Gillman [2000] 3 EGLR 74 (acquisition of car-parking rights). [Back] Note 87 “Creation” will include both grant and reservation. It will also include the case where the registered proprietor of a legal profit à prendre in gross that has been registered with is own title grants a lease of that profit for more than seven years. [Back] Note 88 Schedule 2, para 6. [Back] Note 89 Such as the grant or reservation of an easement or a profit that is not registered with its own title (whether that profit is appurtenant or in gross), or the lease for seven years or less of a profit à prendre in gross (whether or not that profit is registered with its own title). [Back] Note 90 That is, in the register of the land benefited. [Back] Note 91 Schedule 2, para 7. [Back] Note 92 Cl 27(2)(e). Cf Law of Property Act 1925, s 1(2)(b), (e). [Back] Note 93 See Rentcharges Act 1977, s 2; above, para 3.18. [Back] Note 94 Whether by grant or reservation. [Back] Note 95 Schedule 2, para 6. [Back] Note 96 Schedule 2, para 7(2)(a). [Back] Note 97 That is, in the register of the land benefited. [Back] Note 98 Schedule 2, para 7(2)(b). [Back] Note 99 Schedule 2, para 7(3). Such rules will be land registration rules, made by the Lord Chancellor, and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 101 Schedule 2, para 8. [Back] Note 103 See below, para 7.42. [Back] Note 104 Schedule 3, para 6; below, paras 8.29, 8.48. [Back] Note 106 Cl 27(3)(a). For certain exceptions in relation to transfers by operation of law that have already been explained, see above, para 4.19. [Back] Note 107 Schedule 2, para 10. [Back] Note 109 See below, para 7.11. [Back] Note 110 Cl 27(6). The rules will be land registration rules, and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 111 In other words, where the certificate is not deposited with the Registry under Land Registration Act 1925, s 63. As we explain below, para 9.85, when a certificate is “deposited” with the Registry, the practice is not to hold a document as such, but not to issue a land certificate at all. [Back] Note 112 Land Registration Act 1925, s 64(1). [Back] Note 113 See below, para 9.88. [Back]
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