The enactment of the Land Registration Act 2002 offers an opportunity for a fresh approach to land registration by the Courts. It is a very different Act from its predecessor. [C. Harpum, Registered Land: A law unto itself? Ra

At first, the Law Commission felt somewhat compelled to advocate the abolition of all overriding interests however, the reaction was that they should be kept to shield those who cannot reasonably be expected to protect their rights through registration. Overriding interests clearly produce ‘cracks in the mirror’ and chip away at the very concept of the mirror principle and the integrity of the objective of the LRA 2002. It has been suggested by Bogusz that perhaps they are so important that they warrant non registration, statutory protection   and as articulated by Cooke they are too deeply entrenched in the law to be dispensed with. Overriding interests were once defined in s.70(1) LRA 1925 and bound a purchaser even if such rights could never have been discovered. They have been upheld by schedules 1 & 3 of the LRA 2002) albeit reduced in scope and some interests have completely lost their overriding status. Firstly, the interests outlined in paragraphs 10 to 14 in both schedules will cease to be overriding on 12 October 2013 unless registered subject to s.117 LRA 2002, this is due to the fact these are ‘ancient, unusual, onerous, and can be very expensive.’ Secondly, equitable easements are now minor interests and must be substantively registered to be binding; the case of Celsteel Ltd v Alton House Holdings Ltd  has thus been overruled. Thirdly, the requirement of registration for a leasehold estate in land has been reduced from twenty one years to seven years arguably to ensure more rights are entered onto the register in an effort to make the register more accurate. Fourthly and most importantly the parameters of the rights of ‘persons in actual occupation’ that existed under s.70(1)(g) LRA 1925 have been narrowed. The Law commission rejected proposals from The Society of Legal Scholars to repeal s.70(1)(g) without replacement and instead replaced it with paragraph 2 of Schedules 1 & 3 LRA 2002.   Both schedules claim that an interest belonging to a person in actual occupation will now only override in relation to the land that is actually being occupied, thus reversing Ferris Ltd v Wallcite Ltd  which held that actual occupation of part of the land was sufficient to protect the whole land. It was also clear under the old law that a person in receipts of rents and profits could claim the benefit of an overriding interest under s.70(1)(g). Schedule 3 paragraph 2 however only allows interest of those in ‘actual occupation’ and does not afford protection to someone in receipt of rents and profits. ‘Actual occupation’ remains largely undefined under the LRA 2002. The Law Commission report provided some guidance to the definition of ‘actual occupation’ as being ‘physically present there’ to reflect how ‘actual occupation’ was interpreted under the old law.  The LRA 2002 did not include this proviso and so consequently the following interpretation of ‘actual occupation’ under the old s.70(1)(g) will undoubtedly continue to be relevant. In Williams & Glyn’s Bank v Boland  it was held that s.70(1)(g) should be interpreted in plain English and that physical presence of the land was required not just an entitlement in law.  That said, a person does not cease to be in actual occupation because they are temporarily absent as in Chhokar v Chhokar.  With regards to the relevant date of occupation the case of Abbey National Building Society v Cann  held that the claimant has to be in actual occupation on the date of transfer and not the date of registration. Arguably such a case will cease to be an issue once electronic conveyancing is in practice as the transactions will be simultaneous and the registration gap will be removed. Finally, the LRA 2002 makes significant changes to the doctrine of adverse possession.

This idea that a squatter may get away with occupying property for free as well as the prospect that an owner could in fact lose their title to a squatter provokes moral resentment amongst the public and media. Traditionally an adverse possessor could require title to land automatically if they were in occupation of the land for 12 years. The LRA 2002 has now made it harder to acquire title to land by requiring an adverse possessor to apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years (Schedule 6). The registrar notifies the registered proprietor and gives them chance to object and evict the adverse possessor before their occupation gives rise to any claim on the title. The new rules under the LRA 2002 apply only to registered land; unregistered land is still subject to the old law, thus voluntarily first registration has clearly been made more attractive as a result. Bogusz argues that the reason for the change in the law has come about because it has become far too easy for a squatter to acquire title to land.   The case of Pye v Graham  which has been described as ‘Britain’s biggest ever land grab’  is a stark illustration of this and depicts the lawful injustice of the imbalance of rights between a proprietor and a ‘squatter’ pre LRA 2002. In this case Graham acquired 25 hectares of land from Pye with a potential £10million development value for free, simply because the land was occupied for 12 years. If this case was to be decided now there would be a very different outcome as Pye would have the chance to object once the application for adverse possession had been made and Graham would not have succeeded.

Kenny believes that the LRA 2002 is a curious piece of modern legislation in that it has no effect at all for the time being;  arguably this is aimed at the introduction of electronic conveyancing which is yet to be put into practice. The underlying objective of the LRA 2002 is to create a legal structure that will allow registered land to be conveyed electronically thus replacing the older outdated practice which has been said to be rooted in medieval concepts.   Capps is of the opinion that e-conveyancing should make the conveyancing procedure quicker, more transparent and most importantly should remove the ‘registration gap.’   The removal of the gap between transactions and registrations eliminates the danger of unknown interests from appearing on the title without the knowledge of the purchaser which arguably strengthens the mirror principle. Dixon believes that if e-conveyancing is to become a reality it will generate an ‘estoppel boom’ which could undermine e-conveyancing. In Lloyd v Dugdale  it was decided that a right produced by estoppel could qualify as a property interest capable of binding a successor in title under s.70(1)(g).  The LRA 2002 has upheld estoppel rights under s.116 LRA 2002 and declares that equity by estoppel is to be treated as a proprietary right from the time the equity arises. S.93(2) LRA 2002 however provides that a disposition or a contract to make a disposition for a registered estate, charge or an interest which is the subject of a notice in the register will only have effect when entered on the register and made in electronic form, that is by an electronic contract or deed which will satisfy s.2 LP(MP)A 1989  and s.52(1) LPA 1925.  Dixon suggests that people will still try and transfer registered land by written deed or contract but will fail because of the requirements of s.93.  He claims proprietary estoppel acts as an antidote which creates a right regardless to the formalities  the result therefore being that estoppel claims will flourish to circumvent electronic conveyancing.  There are still a lot of unanswered questions regarding how e-conveyancing will be regulated and implemented because a lot of the substantive changes have been made before e-conveyancing has been put into practice.

The LRA 1925 and the LRA 2002 are analogous in their ethos and have a lot in common with regards to Land Registration. Howell suggests that the LRA 2002 is largely unrevolutionary and merely serves to tidy up the law as it stood under the LRA 1925.  Abbey and Richards disagree, they believe that the Act contains extensive reforming provisions that clearly indicate a genuine revolution.  Despite being heralded as a revolution by The Law Commission they themselves say that the change to electronic conveyancing is the ‘revolution’ it refers to in the title of its report and this writer agrees.  E-conveyancing is revolutionary as it is an introduction of a very new system and will completely change the system of Land Registration. However, until it is in place the LRA 2002 is largely evolutionary as it only deals with the deficiencies that the LRA 1925 created. Even though evolutionary, the LRA 2002 does offer a fresh approach to the courts due to the substantive changes to overriding interests and adverse possession and will seek to offer a new approach once e-conveyancing is in place specifically with reference to proprietary estoppel. Overall the LRA 2002 is not wholly different to its predecessor.

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