To What Extent Have the Main Aims of the Land Registration Acts Been Met?

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To What Extent Have the Main Aims of the Land Registration Acts Been Met?

The aims of the extensive restructuring of English property law that took place in 1925 can be accurately summarised by Lord Upjohn: “it has been the policy of the law for over a hundred years to simplify and facilitate transactions in real property.  It is of great importance that persons should be able freely and easily to raise money on the security of their tenure.”  Prior to 1925, the system for the transfer of land remained complex and haphazard.  The legislation of 1925 sought to rectify this by several means, the most notable of which was the expansion of the registered land system.  The need for a comprehensive register of title to land had long been the primary ambition of law reformers.  This is plainly evident in a 1857 Royal Commission which wanted land owners “to deal with land in as simple and easy a manner, as far as title is concerned…”  The realisation of this goal depended ultimately upon a definitive record of the rights and obligations relating to all land in England and Wales.  Consequently, the Land Registry Act (1862) introduced an early system of Land Registration.  However, the system proved unworkable and an entirely new system was established by the Land Transfer Acts of 1875 and 1897.  While it is true that the aims of the Royal Commission have never been fully met by the Land Registration Act (1925), the Act (and subsequent Acts) do go someway towards establishing a purposeful system for the regulation of transactions with land.  The purpose of registration is to make the transfer of land simpler, quicker, cheaper and safer; it is the aim of this essay to determine the extent to which the main aims of the Acts have been met.

At present there are effectively two systems of land ownership in this country which rest upon wholly different foundations – registered land and the unregistered system.  In unregistered conveyancing the aim of the vendor is to produce documentary evidence (title deeds) of previous transactions over a period of time so as to provide adequate proof of ownership. The meaning of registered land is defined by s3(xxiv) of the Act and it simply means that the title to the land is recorded in a central Land Register along with the majority of other rights and interests affecting the land.  Consequently, the Land Register seeks to provide a complete picture of land ownership in England and Wales and do away with the need to repeatedly examine title deeds on successive sales.  The two systems are mutually exclusive; land either falls into one system or the other, but never at the same time.  Despite the grand aims that the architects of the system had, it was necessary to make the conversion to the new system a gradual affair and it was intended to operate alongside the old one.  Compulsory registration for England and Wales was not introduced from the date of the Act due to fierce opposition and instead only certain areas were subject to compulsory registration.  As time passed more areas were added to those which were compulsorily registrable but it was not until the 1960s that the system started to become widespread in the provinces.  As a result, the process of conversion has taken far longer than expected.  It was not until 1990 that real progress was made when all land in England and Wales was subject to compulsory registration upon sale.  Consequently, the registered system is now the accepted norm and it is estimated that 80% of all titles have now been registered.  Therefore, it follows that a significant amount of land is still held under the unregistered system.  Eventually, virtually all land will become registered but until then two systems of land conveyancing are in operation.  

There are several fundamental principles and aims which form the basis for registered conveyancing.  The ‘mirror principle’ aims to reflect, in a definitive form, the totality of all the interests existing in or over any piece of land.  Therefore, the purchaser simply has to check the Register to obtain “an absolute and indefeasible title.”  The register, therefore, dispenses with the need for any retrospective investigation of the title behind or beyond the register and represents a substantial improvement over the old system.  However, the fact that the register only reflects documentary title raises doubts as to the effectiveness of this particular aim.  There are many rights and obligations which never appeared in the title deeds under the old system and, consequently, they do not appear in the modern register.  Many critics seize upon this ‘crack in the mirror’ arguing that the register does not reflect the entirety of the title, particularly in relation to overriding interests (these will be discussed in greater detail).  The ‘curtain principle’ provides that the details of trusts affecting registered land are kept off the title and thereby simplify and facilitate conveyancing by having no affect to the purchaser.

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The ‘insurance principle’ is whereby the State guarantees the accuracy of the titles on the register.  If a discrepancy does occur the Act provides that it may be rectified and compensation is available to those adversely affected.  This is a strong benefit of the system as it ensures certainty and makes it safe to rely on the register.  These statutory provisions, however, provide a significant flaw in the registered system because compensation is not available to every individual who suffers a loss.  Under r13 of the Land Registration Rules (1925), minor slips to not require formal rectification.  The cases where ...

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