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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(9) (9 July 2001)
URL: http://www.bailii.org/ew/other/EWLC/2001/271(9).html
Cite as: [2001] EWLC 271(9)
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PART IX THE REGISTER AND REGISTRATION
INTRODUCTION
(1) the register;
(2) the conclusiveness of registration;
(3) boundaries;
(4) quality of title;
(5) accessing information;
(6) priority protection;
(7) applications; and
(8) land certificates.
9.2 The following matters are not considered in this Part-
(1) the requirements for the registration of a registrable disposition,[1] which has already been explained in Part IV;[2]
(2) the duty to disclose overriding interests,[3] which has been explained in Part VIII;[4]
(3) the alteration of the register,[5] which is examined in its own right in Part X, below; and
(4) proceedings before the registrar,[6] which are addressed in relation to the judicial provisions of the Bill in Part XVI.[7]
THE REGISTER
9.3 The Bill provides that the register of title shall continue to be kept.[8] There is a power, by rules, to make provision about how the register is to be kept.[9] In particular, such rules may make provision about the information that is to be included in the register, the form in which it is to be kept and its arrangement.[10] This approach allows for flexibility and means that changes in the way in which the register is kept will not require primary legislation.[11]
REGISTRATION AS PROPRIETOR
Conclusiveness
9.4 One of the most fundamental principles of registered conveyancing is that it is registration that vests the legal estate in the registered proprietor.[12] Clause 58(1) of the Bill provides accordingly that if, on the entry of a person in the register as the proprietor of a legal estate,[13] the legal estate would not otherwise be vested in him or her, it shall be deemed to be vested in him or her as a result of registration. Thus, for example, if a person is registered as proprietor on the strength of a forged transfer, the legal estate will vest in that transferee even though the transfer was a nullity.
9.5 In Part IV of this Report it was explained that the Bill lays down the registration requirements for registrable dispositions in Schedule 2.[14] It is therefore necessary for the purposes of the principle set out in paragraph 9.4 for the Bill to make provision for the case where some but not all of those registration requirements are met. It therefore provides that the principle stated in paragraph 9.4 does not apply where-
(1) there is a registrable disposition; and
(2) an entry is made in the register in respect of that disposition; but
(3) some further entry is required to meet the registration requirements in Schedule 2.[15]
But for this exception to the principle in paragraph 9.4, the provisions of Schedule 2 would not be registration requirements at all.
9.6 The following events will exemplify how the provision in paragraph 9.5 will operate. X applies to be registered as the grantee of a 99-year lease. The lease is registered with its own title. However, the registrar fails to enter a notice of the lease on the superior freehold title. The legal estate is not vested in X by virtue of Clause 58(1).[16]
Dependent entries
9.7 The Bill explains where entries on the register are to be made in relation to certain dispositions. First, if a legal estate subsists for the benefit of a registered estate, such as an easement or a profit à prendre appurtenant or appendant,[17] the entry of a person in the register as proprietor of that legal estate must be made in relation to the registered estate.[18] Secondly, where a person is registered as the proprietor of a registered charge, that entry must be made in relation to the registered estate subject to the charge.[19] Thirdly, where a person is registered as proprietor of a sub-charge,[20] that entry must be made in relation to the registered charge that is subject to the sub-charge.[21]
Effective date of registration
9.8 At present, the Land Registration Rules 1925 provide that registration is taken to be completed as of the day on which the application for first registration or for registration (as the case may be) is deemed under rules to have been delivered to the Registry.[22] The Bill makes provision as to the time from which registration has effect. In relation to both an application for first registration and an application to register a registrable disposition, it has effect from the time of the making of the application.[23] There are several points that should be noted about this provision. First, the fact that registration will take effect from the time of the making of the application is significant. The Land Registry has recently moved to a system of real time priority[24] under which the priority of an application is determined by the actual time at which it is entered on the day list.[25] Secondly, it is intended that, under the system of electronic conveyancing that it is proposed to introduce, the making of a disposition and its registration will in fact occur simultaneously.[26] The provision mentioned in this paragraph may therefore become obsolete in the comparatively near future.
BOUNDARIES
The general boundaries rule
9.9 In many countries, there is a cadastre,[27] which is a record of all land holding. This is commonly kept for fiscal purposes, and under such systems, boundaries are often surveyed and delimited with at least some degree of precision. No doubt because of a different approach to taxes on land ownership, this cadastral system has not been adopted in England and Wales. In general, in this country, the register is not conclusive as to boundaries. This is because of the so-called "general boundaries rule" that is presently contained in rule 278 of the Land Registration Rules 1925. This provides that-
Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan… shall be deemed to indicate the general boundaries only.[28]
9.10 Although there is a power to fix boundaries,[29] it has hitherto hardly ever been used for two main reasons.[30] The first is the expense of so doing, which, given the manner in which boundaries have been fixed hitherto, is considerable. The second is that the process of fixing of a boundary is all too likely to create a boundary dispute where none had existed hitherto. This is because it is necessary to investigate the titles of all adjoining landowners.[31]
9.11 The general boundaries rule is to be retained under the Bill. However, as we explain below, it is anticipated that fixed boundaries are likely to become more common for the future.[32] Given the importance of the rule, it is included in the Bill itself rather than, as now, in rules. The Bill provides accordingly that the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless it is shown on the register as determined.[33] A general boundary does not determine the exact boundary.[34] Rules may, however, make provision which will enable or require the exact line of the boundary of a registered estate to be determined.[35] In particular, rules may make provision about-
(1) the circumstances in which the exact line of a boundary may or must be determined;
(2) how the exact line may be determined;
(3) the procedure in relation to applications for the determination of a fixed boundary; and
(4) the recording of the fact of determination in the register or in the parcels index (which is explained below[36]).
9.13 Secondly, there may be circumstances in which it will be possible to require that the boundary be fixed. One particular case arises in the context of adverse possession. We explain in Part XIV of this Report that the Bill introduces a new system of adverse possession in relation to registered estates. In general, a person who has been in adverse possession of a registered estate for at least 10 years will be able to apply to be registered as proprietor of it.[37] However, if the proprietor (or certain other interested persons) serves a counter-notice, the application will be rejected.[38] There are certain exceptions to this. In particular, where-
(1) an adjacent landowner has been in adverse possession; and
(2) for at least 10 years of that period of adverse possession, he, she or any predecessor in title has reasonably believed that the land to which the application relates belonged to him or her
the applicant will be entitled to be registered.[39] The thinking behind this exception is that legal and physical boundaries do not always coincide, as where an estate is laid out and the fences are not where the plans on the register say that they are. If, in such circumstances, a neighbour has acted in the reasonable belief that he or she owned the land, his or her claim should succeed. The exception does not, however, apply where the boundary has been determined by rules under Clause 60(3).[40] Furthermore, rules under Clause 60(3) are likely to require that where an applicant does come within the exception and acquires title to the land, he or she will be required to have the boundary fixed when he or she is registered. This will ensure that he or she (or any successor in title) cannot ever invoke this exception again.
Accretion and diluvion
9.14 In Southern Centre of Theosophy Inc v State of South Australia,[41] in giving the opinion of the Privy Council, Lord Wilberforce explained the principles of accretion and diluvion as follows. The doctrine of accretion, he said gave recognition–
to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible…, the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner's land is taken from him by erosion, or diluvion (ie advance of the water) it would be most inconvenient to regard the boundary as extending into the water: the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner's title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to the gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. It may of course be excluded in any particular case, if such is the intention of the parties. But if a rule so firmly founded in justice and convenience is to be excluded, it is to be expected that the intention to do so should be plainly shown. The authorities… have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land, as added to or detracted from by accretion, or diluvion, and that this is so, whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified.
9.15 The Bill gives effect to these principles. First, it provides that the fact that a registered estate is shown as having a particular boundary does not affect the operation of accretion or diluvion.[42] The doctrines of accretion and diluvion will apply therefore, whether the general boundaries rule applies[43] or whether the exact line of the boundary has been determined under the principles explained above.[44] Secondly, if the parties enter into an agreement about the operation of the doctrine of accretion or diluvion in relation to a registered estate, it has effect only if registered in accordance with rules.[45] If, for example, the boundary of two registered estates is a stream, and the respective owners agree that the boundary shall be in a particular place notwithstanding any changes that might otherwise be made by movement of the stream, that agreement will only be effective if it is recorded on the register in accordance with rules.
QUALITY OF TITLE
Introduction
9.16 In Part III of this Report we have explained that, on first registration, the registrar may not always register the proprietor with an absolute title.[46] He or she may, instead, be registered with a good leasehold title, a possessory title or a qualified title.[47] The Land Registration Act 1925 contains provisions which, in their present form date from 1986, for the upgrading of titles.[48] Clause 62 of the Bill replicates those provisions with some amendments. In essence, what it does is to empower the registrar to upgrade a title if certain conditions are met. The rules can be summarised as follows.
When title can be upgraded Upgrading freehold title which has possessory title
(1) The first is if he is satisfied as to the title to the estate.[49] It sometimes happens that a person is registered as proprietor with possessory title not because his or her title is based upon adverse possession, but because he or she is unable to prove title for the statutory period.[50] This may happen because documents of title have been lost or destroyed. If, for example, some missing evidence of title subsequently came to light, the registrar could then upgrade the title. In determining whether he is satisfied as to the title for any of the purposes of Clause 62, the registrar must apply the same standards as he would on an application for first registration.[51]
(2) The second is if the title has been registered as possessory for 12 years and he is satisfied that the proprietor is in possession of the land.[52] If the proprietor has been in possession for 12 years after first registration, the likelihood of any adverse rights being successfully asserted is significantly reduced. Even if they were not barred by adverse possession at the time of first registration,[53] it is likely that they will be 12 years later. The Bill defines when a proprietor is to be regarded as being in possession.[54] This definition is explained fully in Part X, in the context of rectification of the register.[55] There is a power for the Lord Chancellor by order to change the period of 12 years to some other period.[56] Thus, if there were (for example) a reduction in the limitation period applicable to actions for the recovery of unregistered land from 12 to 10 years,[57] the period of 12 years might be reduced to 10.
Upgrading freehold title which has qualified title
9.18 Where a freehold estate is registered with a qualified title, the registrar may enter it as absolute if he is satisfied as to the title to the estate.[58] A person will be registered with a qualified title only where the registrar considers that his or her title can only be established for a limited period or subject to certain reservations that may disturb the holding under that title.[59] Before he could upgrade the title under this power, the registrar would have to be satisfied that the cause of his original objections no longer threatened the holding under that title.
Upgrading leasehold title which has a good leasehold title
9.19 A leasehold estate will be registered with good leasehold title because the registrar has not been able to satisfy himself as to the superior title. As and when he is able to do so, he may upgrade the title to an absolute one.[60] The obvious case would be where the superior title was itself registered for the first time.
Upgrading leasehold title which has a possessory title
(1) good leasehold, if-
(a) he is satisfied as to the title to the estate;[61] or(b) the title has been registered as possessory for 12 years and he is satisfied that the proprietor is in possession of the land;[62] and
(2) absolute, if he is satisfied both as to the title to the estate and as to the superior title.[63]
Upgrading leasehold title which has a qualified title
9.21 Where the title to a leasehold estate is qualified, the registrar may upgrade it from possessory to-
(1) good leasehold, if he is satisfied as to the title to the estate;[64] and
(2) absolute, if he is satisfied both as to the title to the estate and as to the superior title.[65]
No power to upgrade where there is an outstanding adverse claim
9.22 None of the powers conferred by the Bill to upgrade a title may be exercised by the registrar if there is outstanding any claim adverse to the title of the registered proprietor which is made by virtue of an estate, right or interest whose enforceability is preserved by virtue of the existing entry about the class of title.[66] This provision reproduces the effect of the present law,[67] and it is intended to ensure that, if there are any such adverse claims outstanding, they are resolved before any application to upgrade the title is made.
Who may apply for the upgrading of a title
9.23 At present, it is apparently only the registered proprietor who can apply to have his or her title upgraded.[68] However, the registered proprietor may not be the only person who has an interest in the class of title with which a property is registered. For example-
(1) a mortgagee in possession might wish to apply for the upgrading of a title if it was minded to exercise its power of sale, not least because it is under a duty to obtain the best price reasonably obtainable on any sale;[69] and
(2) a person who is not registered as proprietor, but is entitled to be so registered,[70] might wish to secure the upgrading of the title of that registered estate in order (say) to sell the property at a higher price.
(1) the proprietor of the estate to which the application relates;
(2) a person entitled to be registered as the proprietor of that estate;
(3) the proprietor of a registered charge affecting that estate;
(4) a person interested in a registered estate which derives from that estate.[71]
As now, there will be nothing to stop a person who is interested in some other way in a registered estate from requesting the registrar to exercise his power to upgrade a title, even though they have no right to apply to him to do so and he would, therefore, be under no obligation to consider his or her request.
Effect of upgrading title
9.25 The Land Registration Act 1925 does not set out the effect of upgrading title. It is left to be inferred. By contrast, the Bill does set it out in order to make the process of upgrading title easier to understand.[72]
9.26 First, the Bill provides that where a registered freehold or leasehold title is upgraded to absolute title, the proprietor ceases to hold the estate subject to any estate, right or interest whose enforceability was preserved by virtue of the previous entry about the class of title.[73]
9.27 Secondly, where a leasehold title is upgraded from a possessory or qualified title to a good leasehold title, the proprietor also ceases to hold the estate subject to any estate, right or interest whose enforceability was preserved by virtue of the previous entry about the class of title. However, the upgrading of the title does not affect or prejudice the enforcement of any estate, right or interest affecting, or in derogation of, the title of the lessor to grant the lease.[74]
Indemnity
9.28 A point that emerges very clearly from the provisions explained in paragraphs
9.26 and 9.27 is that, on the upgrading of a title, there is some risk that an estate, right or interest may thereby be defeated. The person who had previously had the benefit of that estate, right or interest may therefore suffer loss. We explain in Part X of this Report[75] that, where a person suffers loss by reason of the change of title under Clause 62, he or she is to be regarded as having suffered loss by reason of the rectification of the register.[76] As such, he or she is entitled to be indemnified for that loss.[77]
Use of register to record defects in title
9.29 Clause 64 of the Bill creates a new power, and the background to it requires some explanation. One of the principal objectives of the Bill is to create a conveyancing system in which title can, so far as possible, be investigated on line by computer. [78] It follows that every effort should be made to make the register as conclusive as to title as it is practically possible to make it.
(1) The person who appears to be owner may not be. The fact that a person is entered in the register as proprietor of a legal estate is itself proof that that legal estate is vested in him or her, even if, but for the fact of registration, it would not be.[79]
(2) The owner may have limited powers and may make a disposition that he or she had no power to make. As regards any disponee, the proprietor of a registered estate or charge is taken to have unlimited powers of disposition in the absence of any entry to the contrary on the register.[80] This protects disponees against dispositions that might otherwise be open to challenge as being ultra vires.
(3) The property may be subject to incumbrances. We have explained in Part V of this Report how a disponee under a registered disposition takes his or her interest subject only to-
(a) entries on the register;(b) overriding interests;(c) matters excepted from the effect of registration; and(d) in the case of a disposition of a leasehold estate, the burden of any interest that is incident to the estate (such as a restrictive covenant contained in the lease).[81]
9.32 In many of the most obvious situations in which an occurrence of itself invalidates the title, there are already simple and well-developed practices for meeting the problem. These practices are unlikely to impede speedy conveyancing and do not require extensive inquiries "off line". The obvious example is that of an assignment of a lease or under-lease, where the assignor is in breach of covenant. Where a landlord accepts rent from a tenant whom he or she knows to be in breach of covenant, he or she will be taken to have waived the breach of covenant.[82] Conveyancers take advantage of this and require the assignor of a lease to produce the last receipt for rent prior to the assignment. This creates a rebuttable presumption that all the covenants and provisions of the lease have been duly performed.[83] This is a comparatively simple matter and it is performed as a matter of course. No change in the law or in practice is needed so long as waiver continues to have this potent effect.
(1) the circumstances in which there is a duty to exercise the power conferred by that subsection;
(2) how entries under that subsection may be made; and
(3) the removal of such entries.[84]
As regards the first of these matters, it is likely that the duty will be confined to cases, such as that explained above in paragraph 9.33, where there is no well established procedure for dealing with the problem.
9.35 An obvious objection to this new duty is that it will not be easy to enforce. A solicitor or licensed conveyancer will be very reluctant to inform the Registry of a defect in his or her client's title, particularly where it is one that could lead to the determination of that client's estate. However, as we explain in Part XIII of this Report, the move to electronic conveyancing will provide a means of enforcing such obligations via network access agreements.[85] Under the system of electronic conveyancing that is to be created under the Bill, it will be solicitors or licensed conveyancers acting for buyers who will actually carry out the process of registration. They will do so in accordance with the terms of a network access agreement with the Registry that may require them to disclose specified information.[86] They are likely to know far more about the conveyancing transaction than the Registry does at present when documents are submitted for registration. They may therefore know the facts that make a title bad, even though these will not necessarily appear from the conveyancing documents that, under present arrangements, would be sent to the Registry for registration.
ACCESSING INFORMATION
Introduction
Open registers and their inspection
The significance of the open register
9.37 One of the most important provisions of the Land Registration Act 1925 is section 112, as substituted by the Land Registration Act 1988.[87] It created the open register.[88] Prior to the substitution of the new section 112, the register could only be inspected by the registered proprietor or by an authorised person. Those constraints were removed by the new section. Section 112 has fundamentally changed both the perception and the potential of land registration. First, it has provided the necessary springboard for the development of electronic conveyancing. An open register is essential to a system of conveyancing in which inquiries on title can be made on line by direct access without requiring the consent of the registered proprietor. Secondly, the section has changed the perception of the register itself. Its contents are no longer regarded as a private matter relevant only to the parties to a conveyancing transaction, but as a source of public information about land that can be used for many purposes unconnected with conveyancing.
The rights conferred by the Bill
(1) the register of title;
(2) any document kept by the registrar[89] which is referred to in the register of title;
(3) any other document kept by the registrar which relates to an application to him; or
(4) the register of cautions against first registration.[90] As we explain below,[91] this is not in all respects an unfettered right.
9.40 First, there is a right to inspect and copy any document that is kept by the registrar. There is no exception, as there is now, for leases or charges (or copies of leases or charges).[92] However, that right is subject to rules, as explained below[93] and it will be necessary to place some restrictions on the right of access to protect private information. Furthermore, the Registry does not necessarily have copies of all leases.[94] The present practice is as follows[95]—
it is seldom that a copy of a lease, which is noted as an incumbrance on first registration of the title of the reversion, is supplied so that it can be filed in the Land Registry. Again, when an assignee of a lease applies for the first registration of his title, he is required to supply a certified copy of the assignment but he may not supply a copy of the lease itself. However, when an original lessee applies for first registration, he must furnish a certified copy of his lease.[96]
9.41 Secondly, there is a right to inspect and copy any document kept by the registrar which relates to an application to him but is not referred to in the register. At present, such documents can only be inspected at the discretion of the registrar.[97] However, once again, this right is likely to be qualified by rules, as explained below.[98]
9.42 Thirdly, the formal establishment of the register of cautions against first registration is of course new to the Bill.[99] Like the register of title, it is to be an open register. This is not in fact a novelty. At present, cautions against first registration are recorded in the Index Map[100] and there is a right to search the Index Map and also to obtain copies of a caution title.[101]
The limitations on the rights to inspect and copy
9.43 Clause 66(2) provides that the right to inspect and copy conferred by Clause 66(1)[102] is subject to rules. These rules may, in particular, provide for exceptions to the right and impose conditions on its exercise, including conditions requiring the payment of fees. It is likely that rules will restrict access to documents that may be of a sensitive nature to those who have a good reason to see them.[103] In particular, it is important to protect commercially sensitive information and the rules are likely to ensure that this can be done.[104]
Official copies
9.44 Under section 113 of the Land Registration Act 1925 -
Office copies of and extracts from the register and of and from documents ... filed in the registry shall be admissible in evidence in all actions and matters, and between all persons or parties, to the same extent as the originals would be admissible...
The mysterious term "office copy" is not defined and what distinguishes it from any other copy is not prescribed by the present legislation. However, in practice, office copies are made on paper bearing the Land Registry watermark and an official label describing the document as an official copy. It is therefore, by necessary inference, an official copy issued by the Land Registry and one which is, by statute, certified to be accurate.
(1) the register of title;
(2) any document kept by the registrar which is referred to in the register of title;
(3) any other document kept by the registrar which relates to an application to him; or
(4) the register of cautions against first registration
is admissible in evidence to the same extent as the original.[105] The matters in respect of which an official copy can be obtained do of course mirror the matters listed in Clause 66, in respect of, and to the extent to which, there is a right to inspect and to make copies.[106]
9.46 As might be expected, there is a power for rules to make provision about-
(1) the form of official copies;
(2) who may issue official copies;[107]
(3) applications for official copies;[108] and
(4) the conditions to be met by applicants for official copies, including conditions requiring the payment of fees.[109]
9.47 The Bill provides that a person who relies on an official copy in which there is a mistake is not liable for the loss suffered by another by reason of that mistake.[110] However, as we explain in Part X of this Report, a person who suffers loss by reason of a mistake in an official copy is entitled to be indemnified.[111]
Conclusiveness of filed copies
Introduction
Where the register refers to a filed abstract or copy of or extract from a deed or other document such abstract or extract shall as between vendor and purchaser be assumed to be correct, and to contain all material portions of the original, and no person dealing with any registered land or charge shall have a right to require production of the original, or be affected in any way by any provisions of the said document other than those appearing in such abstract, copy or extract...
The preconditions
9.50 Clause 118 applies where two pre-conditions are met. First, there must be a disposition "that relates to land to which a registered estate relates".[112] This expression requires explanation. It will include not only dispositions that require registration, but some dealings which do not. One consequence of the open register[113] is that it may be relied upon not only by those who are parties to dispositions of, or out of, a registered estate that are capable of being protected on the register, but also by-
(1) those who are granted interests out of a registered estate that are not registrable; and
(2) those who are parties to any subsequent dealings with such unregistered interests.
The obvious case is where a registered freeholder grants a lease for seven years or less. That lease will commonly take effect without registration as an overriding interest[114] and, as such, will not be the subject of any entry on the register. However, the grantee of that lease may search and rely upon the extracts from documents referred to in the register of the freehold title in ascertaining what incumbrances (if any) affect it. Similarly, should that lessee come to assign that lease, the intending assignee might search and similarly rely upon the register of the freehold title out of which the lease had been granted. The presumption of conclusiveness in Clause 118 applies to such dealings.[115] Indeed there might be difficulties if it did not. If the Clause were limited to those who were parties to registrable dealings with registered land, it might create a paradox. Although such parties would be unable to go behind the extracts from the documents referred to in the register, those who were parties to dealings with unregistered interests derived out of a registered estate might claim to be able to do so.
9.51 The second pre-condition to the operation of Clause 118 is that there is an entry in the register relating to a registered estate that refers to a document kept by the registrar which is not an original.[116] As we have explained above, where the register refers to an original document that is kept by the registrar, any person may inspect and copy it, except to the extent that rules may provide otherwise.[117] There is, therefore, no need for any provision as to the conclusiveness of the document. Like section 110(4) of the 1925 Act, the sort of cases that Clause 118 is intended to meet is where the register refers to an abstract, copy or extract from a document but where the registrar no longer retains the original. It should be noted that, in relation to some classes of documents, notably leases, the registrar has hitherto only kept copies and not the originals.
Conclusiveness
(1) as between the parties to a disposition, the document kept by the registrar is to be taken to be correct and to contain all the material parts of the original document;[118]
(2) no party to the disposition may require production of the original document;[119] and
(3) no party to the disposition is to be affected by any provision of the original document which is not contained in the document kept by the registrar.[120]
9.53 In this way, the register is made a barrier to further enquiry in relation to the documents referred to in it. We explain in Part X of this Report that, as now, a person who suffers loss by reason of a mistake in a document kept by the registrar which is not an original and is referred to in the register, is entitled to be indemnified.[121]
Index
9.54 Under rule 8 of the Land Registration Rules 1925-
The Registrar shall keep an Index Map from which it is possible, in relation to any parcel of land, to ascertain whether that land is registered or affected by a caution against first registration and, if so, the title number or numbers under which the land is registered or the distinguishing number of every caution against first registration that affects it.
Despite the practical importance of this Index Map, it has been created under the rule-making powers in the Land Registration Act 1925 and not by the Act itself. The Bill places the Index where it belongs, in primary legislation.
(1) whether any registered estate relates to the land;
(2) how any registered estate which relates to the land is identified for the purposes of the register;
(3) whether the land is affected by any, and, if so what, caution against first registration;[122] and
(4) such other matters as may be prescribed by rules.
9.57 There is a power for rules[123] to make provision about the following matters-
(1) how the Index is to be kept, and in particular-
(a) the information to be included in it;[124](b) the form in which such information is to be kept;[125] and(c) the arrangement of that information;
(2) official searches of the Index.[126]
Historical information
9.58 The register of title only provides details of the title as it stands at any given moment. It is a snapshot not a chronology of the title. It does not provide any details of the historical devolution of that title as do the title deeds on a conveyance of unregistered land, at least to some extent.[127] However, there may be occasions when a person has a reason for wishing to know the historical devolution of a registered title, as the following examples indicate-
(1) an issue might arise as to whether a former owner is liable on the covenants for title which were implied on an earlier transfer;[128]
(2) it may be necessary to discover more about the ownership of land at the time when a restrictive covenant was entered into in order to determine the extent of the land that it was intended to benefit; or
(3) there might be an issue whether certain freeholds had at some stage been in common ownership so as to extinguish by unity of seisin various easements or restrictive covenants.
9.60 In response to the many representations that we received, the Bill remedies this shortcoming. Clause 69(1) provides that the registrar may on application provide information about the history of a registered title. Rules may make provision about applications to the registrar for the exercise of this power.[129] It will be necessary to place some restrictions on the exercise of this power. An examination of the history of a title will inevitably add to the time and expense of the conveyancing process and it should only be made where there is a sound conveyancing reason to do so. It should never be a routine inquiry that a buyer's solicitor or licensed conveyancer feels that he or she is bound to make. It should also be stressed that the Bill imposes no obligation on the Registry to keep a complete historical record of every title, nor to keep any record of a title for an unlimited period. The historical record that the registrar may disclose under the power contained in Clause 69(1) is such as the Registry happens to have.
Official searches
9.61 Official searches were first introduced by rules in 1930 under a rule-making power contained in the Land Registration Act 1925.[130] What are now the Land Registration (Official Searches) Rules 1993, make provision for official searches of the register. The Bill confers an express rule-making power to make provision for official searches of the register, including searches of pending applications for first registration.[131] It is provided that rules may, in particular, make provision about the following matters-
(1) the form of applications for searches;
(2) the manner in which such applications may be made;[132]
(3) the form of official search certificates;
(4) the manner in which such certificates may be issued.[133]
PRIORITY PROTECTION
The present law
(1) complete and find him or herself bound by such rights; or
(2) conduct a search just before completion, discover the existence of such rights and either-
(a) not complete at all; or(b) complete only when the defect in title has been removed.
9.63 To obviate this problem, a buyer may make an official search with priority[134] under the Land Registration (Official Searches) Rules 1993.[135] The official certificate of the result of that search then confers priority on him or her. What this means is that—
any entry which is made in that register during the priority period relating to that search shall be postponed to a subsequent application to register the instrument effecting the purchase...[136]
The "priority period" is 30 days.[137] Priority protection is only available to a "purchaser", namely—
any person (including a lessee or chargee) who in good faith and for valuable consideration acquires or intends to acquire a legal estate in land...[138]
Although this summary greatly over-simplifies the position, it does, we hope, identify the essential elements of an official search with priority.[139]
9.64 At present, official searches can be made in any of the following ways—
(1) by post;[140]
(2) by telephone or personal attendance at a district land registry;[141]
(3) by fax;[142] and
(4) by direct access.[143]
9.65 Three developments should be noted.
(1) The system of priority searches has been extended to protect a buyer of unregistered land who has applied for first registration of his or her title.[144] Where an application has been made for first registration by a buyer, but the registration has not yet been completed,[145] the intending buyer from the applicant can make an application for a priority search. This will ensure that his or her application for registration will take priority over any subsequent application for any entry in the register of title to that land.[146]
(2) Since the introduction of real time priority, the priority of all searches and applications is determined by the time at which they are entered on the day list.[147] This does not apply, however, to those applications that have been protected by a priority search and which take their priority accordingly.
(3) It will be apparent from what has been said above, in paragraph 9.63, that there are many applications to the Registry that cannot be protected by a priority search. A limited form of protection has recently been introduced for such applications concurrently with the introduction of real time priority. It is now possible to make an outline application to reserve a short period of priority for interests that cannot be protected by an official search with priority.[148]
Priority protection under the Bill
9.67 The Bill makes express provision for priority protection and extends the circumstances in which it can be obtained.[149]
The circumstances in which priority protection will be available
(1) official searches of the register, including searches of pending applications for first registration; or
(2) the noting in the register of a contract for the making of a registrable disposition of a registered estate or charge.[150]
We say more about the power to make rules below.[151] The first of these two cases replicates the circumstances in which priority protection can already be obtained. The second is new and it has been included in the Bill with the introduction of electronic conveyancing in mind.
(1) any disposition of a registered estate or charge,[152] or a contract to make such a disposition, will only take effect when it is registered; but
(2) the making of that disposition or contract will occur simultaneously with its registration.[153]
It follows, therefore, that it will be necessary to enter a notice in the register in respect of any estate contract. It is at present unusual to enter a notice in respect of an estate contract. The entry of such a notice protects an interest against a subsequent registered disposition. It is, in practice, only needed therefore where that contract may have an extended lifespan, as may be the case, for example, with a conditional contract. Given that it will become necessary to enter a notice for any contract to be valid, it is reasonable that that entry should confer the additional advantage of priority protection. We give an example below to demonstrate the advantage of that protection.[154]
The meaning of priority protection
9.70 An application for an entry in the register will be protected if it is one to which a priority period relates -in other words it falls within one of the two cases explained above at paragraph 9.68 -and it is made before the end of that period.[155] Except in two cases explained below,[156] where an application for an entry in the register is protected in this way, any entry made in the register during the period relating to the application, is postponed to any entry that is made in pursuance to that entry.[157]
(1) On 1 March Z obtains a charging order over X's land.
(2) On 1 April, X contracts to sell his land to Y. Y's estate contract is protected by a notice and the entry of that notice also confers priority protection for the priority period which is, say, 30 days.
(3) On 7 April, Z applies for the entry of a notice on the register in respect of her charging order.[158]
(4) On 21 April, X executes a transfer on sale of the land to Y, Y applies to register that transfer and is then registered.
In these circumstances, Y will take free of Z's charging order. Even though Z's charging order had priority over Y's estate contract (because it pre-dated that contract[159]), Y will take free of it because it was not protected on the register at the time of the transfer.[160] But for the priority protection which was triggered by the entry of the notice in relation to Y's estate contract Z's application for a notice would have been effective, and her charging order would have bound Y on registration. In other words, the priority protection given to the estate contract prevents the entry on the register of a prior interest which, if it were entered on the register prior to the registration of the disposition that gives effect to the estate contract, would have priority over that disposition.
9.72 As we have mentioned, the principle that where an application for an entry in the register is protected, any entry made in the register during the period relating to the application, is postponed to any entry that is made in pursuance to that entry,[161] is subject to two exceptions.
(1) The first case is if the earlier entry was itself made in pursuance of a protected application and the priority period relating to that application itself ranked ahead of the one relating to the application for the other entry.[162] In other words, if A had made an official search with priority on 1 April, and B then made an official search with priority on 10 April, A's application to register a transfer in her favour would not be postponed to, but would take priority over, B's application.
(2) The second case is where the court, in exercise of powers explained in Part VI of this Report,[163] orders that a restriction be entered and directs that it is to have overriding priority.[164] Once again, this overrides the priority that the application would otherwise have.[165]
Rules
9.73 As we have indicated above, the power to make provision for the two cases in which priority protection would be given is subject to rules.[166] Those rules may, in particular, make provisions as to the following matters-
(1) the commencement and length of the priority period;
(2) the applications for registration to which such a period relates;
(3) the order in which competing priority periods rank; and
(4) the application of the priority principle explained in paragraph 9.70 and the exception to it set out in paragraph 9.72(1) in cases where more than one priority period relates to the same application.[167]
9.74 Two of those cases require some explanation. As regards (2), this can best be explained by an example. A buyer will commonly be buying the land with the aid of a mortgage. It is not only his or her application to register the transfer, but also the charge, that will require priority protection. The reason for (4) lies in the possibility that a person might, say, make an official search with priority before he or she contracts to buy certain land. A further period of priority protection might then be obtained when he or she either enters into the contract or makes a second official search with priority. There need to be rules (as there are now) about how the two periods interrelate, especially if a third party makes a priority search in between the two events.[168]
9.75 Under the Bill rules may also make provision for the keeping of records in relation to priority periods and the inspection of such records.[169] In other words, it will be possible, as it is now,[170] to discover whether there is any priority period in place in respect of another application.
APPLICATIONS
The form and content of applications
(1) for first registration;[171]
(2) to lodge or cancel a caution against first registration; [172]
(3) to register a registrable disposition;[173]
(4) to enter, remove or cancel a notice;[174]
(5) to enter or withdraw a restriction;[175]
(6) to register the priority of registered charges;[176]
(7) to determine the exact line of a boundary;[177]
(8) to upgrade title;[178]
(9) to obtain an official copy;[179]
(10) to obtain an official search;[180]
(11) to enter into a network access agreement;[181]
(12) by a squatter to be registered as proprietor;[182] and
(13) for the Adjudicator to rectify or set aside a document.[183]
9.77 Although in certain cases there are, necessarily, specific rules about particular kinds of application,[184] the Bill also contains a general power to make rules to make provision-
(1) about the form and content of applications under the Bill;
(2) requiring applications under the Bill to be supported by such evidence as rules may prescribe;
(3) when an application under the Bill is to be taken as made;
(4) about the order in which competing applications are to be taken to rank; and
(5) for an alteration made by the registrar for the purpose of correcting a mistake in an application or accompanying document to have effect in such circumstances as the rules may provide as if made by the applicant or other interested party or parties.[185]
A number of these powers require comment.
9.78 As regards (1), it will be possible under the Bill to require all applications to be in prescribed form. Indeed it is likely that all applications in electronic form will in fact be prescribed to ensure the effective working of the system.[186]
9.79 One of the reasons for the provision in paragraph 9.77(3) and (4), is to ensure that there is a power to allocate priority to competing applications that come into the Registry. As has been explained, HM Land Registry is moving from a system whereby the priority of applications is determined according to a formula set out in rules,[187] to one of "real time priority", by which priority is determined by the time at which the application is entered on the day list at the Registry.[188] In relation to electronic conveyancing, there will, in any event, have to be a system of real time priority because it is envisaged that the making of a disposition and its registration will occur simultaneously.[189]
9.80 The purpose of the power in paragraph 9.77(5) is to enable the registrar to correct what are purely clerical errors without the need to obtain the consent of the applicant. This power, which corresponds to that which presently exists under rule 13 of the Land Registration Rules 1925, is explained in Part X of this Report.[190]
Registered charges and company charges
9.81 Where a company creates a registered charge over its property, that charge will not only be registrable under the Bill, but it will also be required to be registered under the Companies Act 1985.[191] Registration in the Companies Register under the Companies Act 1985 fulfils a wholly different function from registration on the register of title. It does not affect the priority of competing charges over a company's property. Its intended purpose is to protect actual or potential creditors by making the liabilities of a company apparent on the face of the register. Notwithstanding these differences of function and the fact that, at present, the applications for registration are very different in form, it is highly desirable that it should be possible to make a combined application to the Land Registry to register the charge on the register and for that application then to be forwarded to Companies House for registration in the Companies Register. It is anticipated that this will apply primarily to applications in electronic form. The power, explained above,[192] for rules to make provision about the form and content of applications under the Bill,[193] means that it will be possible to prescribe a combined form of application for this purpose. HM Land Registry is discussing with Companies House ways in which the two systems may be linked.[194]
9.82 Clause 119 of the Bill therefore provides for rules to make provision about the transmission by the registrar to the registrar of companies of applications to register company charges where those charges are submitted for registration at the Land Registry.[195]
LAND CERTIFICATES
The nature of a land or charge certificate under the present law
On the first registration of a freehold or leasehold interest in land, and on the registration of a charge, a land certificate, or charge certificate, as the case may be, shall be prepared in the prescribed form: it shall state whether the title is absolute, good leasehold, qualified or possessory, and it shall be delivered to the proprietor or deposited at the registry as the proprietor may prefer.[196]
There is also provision for the issue of a land or charge certificate on the completion of the registration of a transfer or grant of any registered land or charge.[197]
9.84 The form of the certificate is prescribed by rules.[198] The certificate contains a copy of the register with a note of the date on which it was examined, and there is provision for the certificate to be endorsed from time to time with subsequent entries in the register.[199] The certificate is admissible as evidence "of the several matters therein contained".[200] There is power for the registrar to issue a new certificate in place of one which is produced to him,[201] and in certain other cases, as where a certificate has been lost or destroyed.[202]
9.85 A certificate is "outstanding" for the purposes of the Land Registration Act 1925, when it is retained by the proprietor and not deposited at the Registry.[203] When a charge is registered, the land certificate has to be deposited at the Registry until the charge or mortgage is cancelled.[204] This provision, which was at one time literally observed, is now a fiction. In practice, where a property is subject to a registered charge, the registry does not issue a land certificate until such time as the charge is redeemed.
Present practice
9.86 Where the land or charge certificate is outstanding, it must be produced to the registrar—
(1) on an entry made in relation to a registered disposition;
(2) on every registered transmission;[205] and
(3) on the entry of a notice or restriction.[206]
This requirement is subject to certain exceptions. First, in certain specified cases a notice may be entered without the production of the certificate.[207] Secondly, where the certificate is deposited in the Registry, it obviously cannot be produced in relation to the transactions listed in (1)-(3) above. However, because all of those transactions require either the consent of the registered proprietor or an order of the court before they can be effected, the registry does in practice notify the registered proprietor before making any such entry.
9.87 When the Land Registration Act 1925 was first enacted, land and charge certificates were regarded as being much more important than they are now. In a commentary published in 1939, the then Chief Land Registrar commented that "the Land Certificate (or, in the case of a mortgage, the charge certificate) takes the place of the title deeds for almost all purposes".[208] This is reflected in the now-obsolete provision which sanctioned the creation of a lien by deposit of a land or charge certificate to secure indebtedness.[209]
The impact of the Bill
9.88 It will be apparent from what has been said in Parts IV and VI of this Report, that the role of land certificates is to be reduced considerably under the Bill. There will be no requirement that they should be produced on a disposition of a registered estate.[210] Nor will they have to be produced to secure the entry on the register of either a notice or a restriction.[211] Instead, as we have explained, there will be procedures that will enable the registered proprietor to secure the cancellation of a notice[212] and object to the entry of a restriction.[213] Furthermore, a person who applies for the entry of a notice or restriction without reasonable cause commits a breach of statutory duty that is actionable in damages.[214] Perhaps the most important factor, however, is that any requirement to submit a land or charge certificate to the registrar on registration is not readily compatible with the system of electronic conveyancing that the Bill is intended to introduce.
Abolition of charge certificates
9.89 The first steps in the process of introducing electronic conveyancing are likely to be in relation to registered charges. It is already possible to discharge a registered charge electronically,[215] and it is likely that the creation of registered charges will be the first forms of disposition of registered land that can be effected electronically. We can see no useful purpose in retaining charge certificates. There is therefore no provision in the Bill either to authorise the issue of charge certificates, or in relation to those already in existence. Charge certificates will be abolished once the Bill is brought into force.
Land certificates
(1) when a certificate of registration of title may be issued;
(2) the form and content of such a certificate; and
(3) when such a certificate must be produced or surrendered to the registrar.[216]
Ü Þ
Note 1 Cl 27(4); Schedule 2. [Back] Note 2 See above, para 4.16. [Back] Note 4 See above, para 8.91. [Back] Note 5 See Cl 65; Schedule 4. [Back] Note 8 Cl 1(1). Cf Land Registration Act 1925, s 1(1). [Back] Note 9 At present almost all titles on the register are kept in electronic form, though there are still a few that are held in documentary form. [Back] Note 10 Cl 1(2). The rules will be land registration rules and will be required to be laid before Parliament only. See Cls 125, 129(1). For the present rules on the manner in which the register is arranged and its content, see Land Registration Rules 1925, Part 1. [Back] Note 11 Land Registration Act 1925, s 1 had to be amended by Administration of Justice Act 1982, s 66 to make it clear that the register did not have to be kept in documentary form. [Back] Note 12 Cf Land Registration Act 1925, s 69(1). [Back] Note 13 “Legal estate” has the meaning given to it by Law of Property Act 1925, s 1(4): see Cl 129(1). [Back] Note 16 The grant will, however, be effective in equity. [Back] Note 17 For profits appurtenant and appendant, see Megarry & Wade’s Law of Real Property (6th ed 2000), 18-082, 18-083, respectively. [Back] Note 20 For sub-charges, see above, para 7.11 [Back] Note 22 Land Registration Rules 1925, rr 24, 42, 83. [Back] Note 23 Cl 74. For the rule-making power to provide when an application is taken to be made, see Schedule 10, para 6(c); below, para 9.77(3). [Back] Note 24 As from 28 May 2001. [Back] Note 25 See Land Registration Rules 1925, rr 24(2), 85(1). The day list is a record of pending applications for first registration and for making, rectifying or cancelling an entry on the register:ibid, r 7A. [Back] Note 26 This is explained fully below, see paras 13.74 and following. [Back] Note 27 Or whatever the local variant of that word may be. [Back] Note 28 Land Registration Rules 1925, r 278(1). [Back] Note 29 See Land Registration Rules 1925, r 278(2). Once so fixed, the boundary is guaranteed by the Registry. [Back] Note 30 See Ruoff & Roper, Registered Conveyancing, 4-22. [Back] Note 31 Ibid. In the Land Registry’sPractice Leaflet No 16: Boundaries in Land Registration, para 1.2, it is stated that “in view of the need for the precise boundaries to be agreed between neighbouring parties, a fixed boundary registration is not the solution for solving a boundary dispute”. [Back] Note 35 Cl 60(3). The rules will be land registration rules and will be required to be laid before Parliament only. see Cls 125, 129(1). [Back] Note 36 See paras 9.54, 9.55. [Back] Note 37 See Schedule 6, para 1; below, para 14.20. [Back] Note 38 Schedule 6, paras 2, 3; below, paras 14.32-14.33, 14.35. [Back] Note 39 Schedule 6, para 5(4); below, paras 14.44-14.52. [Back] Note 40 Schedule 6, para 5(4)(b); below, para 14.49. This in itself may encourage landowners to have their boundaries determined where the boundaries do not coincide with the physical layout of the land. [Back] Note 41 [1982] AC 706, 716. [Back] Note 43 See above, paras 9.9, 9.11. [Back] Note 44 See paras 9.11, 9.12. [Back] Note 46 See above, paras 3.43, 3.44, and Cls 9, 10. [Back] Note 47 For the effect of registration with the different grades of title, see Cls 11, 12; above, paras 3.45-3.51. [Back] Note 48 See s 77, substituted by Land Registration Act 1986, s 1(1). [Back] Note 50 Which is for at least 15 years: see Law of Property Act 1925, s 44(1) (as amended). [Back] Note 53 Where the application for first registration is based upon adverse possession, the applicant will have to satisfy the registrar that he or she has been in adverse possession for at least 12 years before he or she can be registered as proprietor. [Back] Note 55 See below, para 10.17. The concept of when a proprietor is in possession is very wide under the Bill. [Back] Note 56 Cl 62(9). Any such order must be made by statutory instrument and would be subject to annulment in pursuance of a resolution of either House of Parliament: Cl 125(4). [Back] Note 57 As the Law Commission has recommended: see Limitation of Actions (2001) Law Com No 270. [Back] Note 59 Cl 9(4); above, para 3.43. [Back] Note 62 Cl 62(5). Once again, as to when the proprietor will be regarded as being in possession, see Cl 128; below, para 10.17. [Back] Note 67 See Land Registration Act 1925, s 77(4). [Back] Note 68 Land Registration Act 1925, s 77 refers only to the registrar acting on his own initiative or “on application by the proprietor”. The registrar can act on his own initiative so that, even under the present law, some other interested person could draw the matter to his attention. [Back] Note 69 Cf Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949. [Back] Note 70 Such as an executor in respect of the testator’s registered estate. [Back] Note 75 See below, para 10.31. [Back] Note 76 Schedule 8, para 1(2)(a). [Back] Note 77 Schedule 8, para 1(1)(a). [Back] Note 78 See above, paras 1.5, 2.1(1). [Back] Note 79 See Cl 58; above, para 9.4. [Back] Note 80 See Cl 26; above, para 4.8; Cl 52; above, para 7.7. [Back] Note 81 See Cls 29, 30; above, Part V. [Back] Note 82 See Megarry & Wade’s Law of Real Property (6th ed 2000), 14-125, 14-126. [Back] Note 83 See Law of Property Act 1925, s 45(2), (3). [Back] Note 85 See below, para 13.52. [Back] Note 86 See below, paras 13.36 and following. [Back] Note 87 The Land Registration Act 1988 implemented the recommendations of the Law Commission in its Second Report on Land Registration (1985) Law Com No 148. [Back] Note 88 For the rules governing the operation of the open register, see Land Registration (Open Register) Rules 1991; Ruoff & Roper, Registered Conveyancing, B-404. [Back] Note 89 In practice such documents will, increasingly, be held in electronic form. With the introduction of electronic conveyancing, all conveyancing documents thereafter created will be held in electronic form. Furthermore, the Registry is embarked on a programme of scanning existing documents so that they can be kept in dematerialised form. [Back] Note 92 See Land Registration Act 1925, s 112(1)(b). The registrar has a discretion to issue office copies of such documents underibid, s 112(2)(b). [Back] Note 94 It does have copies of all charges created over registered land: see Land Registration Rules 1925, r 139. [Back] Note 95 Ruoff & Roper, Registered Conveyancing, 21-22. [Back] Note 96 Land Registration Rules 1925, r 21. [Back] Note 97 There is an exception for criminal investigations if the applicant falls within one of the categories specified in Land Registration (Open Register) Rules 1991, Schedule 2. In such cases and for the purposes there specified, the applicant has a right of inspection. [Back] Note 99 See Cl 19; above, para 3.65. [Back] Note 100 See Land Registration Rules 1925, r 8. [Back] Note 101 See Land Registration (Open Register) Rules 1991, rr 9 and 8, respectively. [Back] Note 102 See above, para 9.38. [Back] Note 103 One of the most sensitive pieces of information -the amount secured by a charge over registered land -is in fact seldom apparent from the documents kept by the Registry. [Back] Note 104 The rules will follow the scheme laid down in the Freedom of Information Act 2000. [Back] Note 106 See above, paras 9.38 and 9.43. [Back] Note 107 In this context it may be noted that, when electronic conveyancing is introduced, there will be power to authorise persons such as solicitors and licensed conveyancers to issue official copies pursuant to a network access agreement: see Schedule 5, para 1(2)(d); below, para 13.37. [Back] Note 108 Such applications can already be made electronically by means of the Direct Access system: see Directions of the Chief Land Registrar, 12 May, 1997, Ruoff & Roper, Registered Conveyancing, F-12. [Back] Note 109 Cl 67(3). Such rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 110 Cl 67(2), replicating in part Land Registration Act 1925, s 113. [Back] Note 111 Schedule 8, para 1(1)(d); below, para 10.34. [Back] Note 113 See above, para 9.37. [Back] Note 114 See Schedule 3, para 1; see above, para 8.50. A lease granted for more than three years may be protected by the entry of a notice: see Cl 33(b); above, paras 6.10-6.12. [Back] Note 115 Land Registration Act 1925, s 110(4), only applies as between a seller and buyer under a disposition of registered land other than a lease or a charge. [Back] Note 117 Cl 66; above, paras 9.38 and following. [Back] Note 121 Schedule 8, para 1(1)(e); below, para 10.35. [Back] Note 122 Under the Bill there is a separate register of cautions against first registration: see Cl 19; above, para 3.65. [Back] Note 123 Such rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 124 This might be wider than it is at present and might, for example, include land use. [Back] Note 125 This would include the medium in which the Index would be kept and would, in particular, enable it to be kept in electronic form. [Back] Note 126 Cl 68(2). For official searches of the register of title, see below, para 9.61. Official searches of the index map can already be made electronically through Direct Access: see Direction of the Chief Land Registrar, 12 May 1997, Ruoff & Roper, Registered Conveyancing, F-12. [Back] Note 127 The title which a seller of unregistered land has to deduce is fairly limited in point of time. His or her obligation to a buyer is to deduce title from the first good root of title that is more than 15 years old: see Law of Property Act 1925, s 44(1) (as amended). Problems about tracing the history of a title can therefore arise even where it is unregistered. [Back] Note 128 The benefit of such covenants is annexed to the land benefited and runs with it: see Law of Property (Miscellaneous Provisions) Act 1994, s 7 (a provision introduced by an amendment tabled by Lord Brightman during the passage of the Act through Parliament). [Back] Note 129 Cl 69(2). The rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 130 Section 144(1)(ix); see below, para 9.66. [Back] Note 131 Cl 70. The rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 132 Such applications can already be made electronically by means of the Direct Access system: see Notice of the Chief Land Registrar, 12 May 1997, Ruoff & Roper, Registered Conveyancing, F-14. [Back] Note 133 When electronic conveyancing is introduced, persons such as solicitors and licensed conveyancers may be authorised to issue official search certificates pursuant to a network access agreement: see Schedule 5, para 1(2)(c); below, para 13.37. [Back] Note 134 It is also possible to search without priority: see Land Registration (Official Searches) Rules 1993, rr 9, 10. [Back] Note 135 See Ruoff & Roper, Registered Conveyancing, B-429 and following. [Back] Note 136 Land Registration (Official Searches) Rules 1993, r 6. [Back] Note 137 See Land Registration (Official Searches) Rules 1993, r 2(1), where the matter is more precisely defined. The rules are likely to change because of the move to “real time priority”. In other words, priority is determined by the actual time that an application or search is entered on the day list at the Registry. See below, para 9.79. [Back] Note 138 Land Registration (Official Searches) Rules 1993, r 2(1). See Ruoff & Roper, Registered Conveyancing, 30-08. [Back] Note 139 For an account of the present law, see Ruoff & Roper, Registered Conveyancing, Chapter 30. [Back] Note 144 Ibid, 30-07. What underlies this is the fact that a first registration is completed on the date on which the application for first registration is made (even though in practice the registration will not in fact be made until the application has been processed, which may take some considerable time in some cases): see Land Registration Rules 1925, rr 24, 42. [Back] Note 145 Cf Land Registration (Official Searches) Rules 1993, r 2(1). [Back] Note 146 See Land Registration (Official Searches) Rules 1993, r 7. [Back] Note 147 See above, para 9.8. [Back] Note 148 See Land Registration Rules 1925, r 83A. Under r 83A(8), the reserved period “means the period ending at 12 noon on the third day following the day that notice of an outline application was deemed... to be delivered” (which normally means from the time that the application is entered in the day list). [Back] Note 150 Cl 72(6)(a). The rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 151 See para 9.73. [Back] Note 152 Or indeed of an interest which is the subject of a notice in the register. [Back] Note 153 Cl 93; below, paras 13.74 and following. [Back] Note 154 See para 9.71. [Back] Note 156 See para 9.72. [Back] Note 158 Cf Cl 87(1)(b); above, para 6.61; Charging Orders Act 1979, s 3(2). [Back] Note 159 Cf Cl 28; above, para 5.5. [Back] Note 160 Cl 29; above, para 5.6. [Back] Note 161 Above, para 9.70. [Back] Note 163 See paras 6.52, 6.53. [Back] Note 166 See para 9.68. [Back] Note 167 Cl 72(7). The rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 168 For the present rules about concurrent applications for official searches with priority: see Land Registration (Official Searches) Rules 1993, rr 8, 9. [Back] Note 169 Cl 72(6)(b). The rules will be land registration rules and will be laid before Parliament only: Cls 125(3), 129(1). [Back] Note 170 See Land Registration (Official Searches) Rules 1993, r 5. [Back] Note 174 Cls 34, 35, 36. [Back] Note 181 Schedule 5, para 1. [Back] Note 182 Schedule 6, paras 1, 6. [Back] Note 184 See, eg, Cl 14 (rules about first registration); Schedule 6, para 15 (procedure on applications by an adverse possessor). [Back] Note 185 Schedule 10, para 6. The rules will be land registration rules and will be laid before Parliament only: Cls 123, 125(3), 129(1). [Back] Note 186 Cf below, para 13.12 (in relation to applications to register dispositions). [Back] Note 187 See Land Registration Rules 1925, rr 24, 84, 85. [Back] Note 188 See above, para 9.8. [Back] Note 189 See Cl 93; below, paras 13.74 and following. [Back] Note 190 See para 10.28. [Back] Note 191 Under either Part 12 of that Act (registration of charges) or Chapter 3 of Part 23 (corresponding provision for oversea companies). [Back] Note 192 See para 9.77. [Back] Note 193 Schedule 10, para 6(a). [Back] Note 194 Certain technical difficulties have to be overcome. [Back] Note 195 The rules will be laid before Parliament only: Cl 125(3); but will not be land registration rules: Cl 129(1). There is no reason why rules on the transmission of information from one Government department to another should have to be considered by the Rules Committee under Cl 124. [Back] Note 196 But see below, para 9.85. [Back] Note 197 Land Registration Act 1925, s 64(3). [Back] Note 198 See Land Registration Rules 1925, rr 261—264; Schedule 2, Form 78. [Back] Note 199 Land Registration Act 1925, s 63(2). [Back] Note 201 Ibid, s 67(1). [Back] Note 202 Ibid, s 67(2); Land Registration Rules 1925, r 271. [Back] Note 203 See Land Registration Act 1925, s 64(1). [Back] Note 204 Ibid, s 65. The reference to mortgage cautions in that section refers to a type of entry that is now obsolete, having been abolished by Administration of Justice Act 1977. [Back] Note 205 That is, transmissions on death or bankruptcy. [Back] Note 206 Land Registration Act 1925, s 64(1). [Back] Note 207 Seeibid, s 64(5)—(7) (as inserted). [Back] Note 208 Brickdale and Stewart-Wallace, The Land Registration Act, 1925 (4th ed), p 176. [Back] Note 209 Land Registration Act 1925, s 66; see above, para 7.10. [Back] Note 210 See above, para 4.31. [Back] Note 211 See above, paras 6.23, 6.54. [Back] Note 212 See Cl 36; above, para 6.30. [Back] Note 213 See Cl 45; above, para 6.56. [Back] Note 214 Cls 77(1)(b) and 77(2); above, paras 6.28, 6.55. [Back] Note 215 See Land Registration Rules 1925, r 151A. [Back] Note 216 Schedule 10, para 4. The rules will be land registration rules and will be laid before Parliament only: Cls 123, 125(3), 129(1). [Back]
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