Reforms in Land laws during the nineteenth century.

The objectives of the new law- the Law Commission report

Keeping in view, the discontentment and problems of the public and also pace of litigation, the Law Commission carried out exhaustive studies and consultation process and finally produced a lengthy report. LC271 is the longest report ever produced by the Law Commission. It summarises the current law, explains the main provisions, and highlights the changes in the current law. The Law Commission in the report beautifully sets out the objectives of this new law. The broad and fundamental objective is:

‘The fundamental objective of the law is that, under the system of electronic dealing with land that it seeks to create, the register should be a complete reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land on line, with the absolute minimum of additional enquiries and inspections.’

The Law Commission came to the firm conclusion that the single major obstacle to achieving above goal was the existing of overriding interests in the Land registration Act 1925. These overriding effects presented a very significant impediment and were one of the biggest flaws. The Commission proposed that the new law should seeks to restrict and minimise these interests to a greater extent. The new law has defined  category of overriding interests more narrowly. Some expressly created interests have been excluded. It also presents a scheme for phasing out of the more obscure interests after a certain period.  The move to electronic conveyance will also eliminate the overriding interest. Finally has strengthened the mechanism for protecting overriding interests in the register if they are capable of being protected.  It also provides that a solicitor who is aware of an overriding interest must inform the registrar, who will then inter a notice of that interest on the register. However, the Law Commission could not resolve the issue of mirror of titles. There were proponents and opponents. It finally came to the conclusion that there are certain right which are necessary and may not be abolished hurriedly. However, certain may be phased out. Hence, there are certain interests, which are still in the new law and are binding upon the purchaser of the registered land. These are:

• Most leases granted for not exceeding seven years
• The interests of person in actual possession
• legal easements and profits a`prendre that have arisen by the implied grant or reservation or by prescription
• customary and public rights
•  local land charges
• certain mineral rights
• a franchise
• a manorial right
• a right to rent which was reserved by Crown on granting of any freehold estate
• a right in respect of an embankment or sea or river wall
• a right to payment in lie of tithe

Let us now look into some of the unique features of the Act 2002.

The 2002 Act, salient features

On 13 October 2003, the Land Registration Act, 2002 and the Land Registration came into force. The aim of this important legislation is to modernise and simplify the process by which the land is transferred and, ultimately to pave the way for electronic convincing. It is in fact a shift from registration of titles to title by registration. It is premised on the fundamental principle that the law applicable to ‘registered land’ is different from that applicable to ‘ unregistered land’. Thus, the Act 2002 does not seek to harmonise the two systems but develops the principles of the registered land in a manner that is suited to a modern system of land registration rather than a feudal system based on a paper deeds and possession. Of course by way of voluntary registration facility the unregistered land is shrinking daily. In the new system the emphasis is placed on the integrity of the Register of Title as both the guarantee of title and means to identify other peoples’ rights, which affect the land. The basic structure of this  law is similar to the old one. As before, there are registerable titles (legal freeholds and certain legal leaseholds), registerable charges (legal mortgages), interests which must be entered on the Register against a title in order to be protected if the land is transferred (called minor interests in the 1925 Act but no name in the new Act 2002), and interests which are automatically binding against a title even though they are not entered on the Register (overriding interests in the 1925 Act and interests which override under the 2002 Act).As against its predecessor, the 2002 Act does not use the term overriding interests, but lists in two schedules, ‘unregistered interests’ which override the first registration and ‘ unregistered interests’ which override registered dispositions. This has the merit of clarity but this term has become so common that it is probably still used and will get favour of friendly treatment both those who benefit from it. The detail of the registered land is also different. First, most of the title must be registered. This brings many more titles on the Register. Secondly, most third party interests must be entered on the Register to be protected on a sale of land and consequently the range of overriding interest is reduced. See s 29 and Schedule 1 and 3. The positive result is that a search of the register will reveal most of the rights affecting the title and, more over, in many cases only those rights that are obvious or notorious can potentially qualify as overriding interests. Some overriding interests are to lose this status in October 2013. Thus purchaser of the land can be protected from the hidden and dangerous third party rights.

Then, the manner of protecting the third party rights through an entry on the register has changed. Third party interest now is protected by means of a Notice in the Register of Title. The old system of haphazard cautions, notices, restrictions and inhibitions has been improved. Now the new style Notices are used to protect the third party interests. However, restrictions are used to restrict the existing proprietor to deal with land. The adverse possession has virtually been abolished for the registered land. Gone are the days when possession was considered one-tenth of ownership. Above all, the 2002 Act paves the way for e-conveyancing. This will make the sale and transfer of land electronically possible. It gives a day where after it will be mandatory to enter rights on the Register electronically. This will bring radical change in land registration. It would be a clear break from feudal system. It will also have side effects and distinction between legal and equitable property rights will be legally abolished.

The analysis and way ahead

A central and crucial debate in any system or any theory of title registration is; how for can the system dispense with interests that bind the land without being recorded on the register? The prevalent belief in UK is that there will always be rights, which it is unfair and impracticable to expect the holder to register but which the system must protect. This is the justification given by the Law Commission in favour of retaining some of the overriding interests despite criticism from several quarters.    For the Twenty –First Century, we have a new range of registerable interests, a new approach to the powers of the registered proprietor; a more comprehensive system for interests recording for unregistered interests, a slimmer set of overriding interests. The law on alteration of the register is re-drafted and the law relating to adverse possession is radically re-cast so ass to strengthen the principle that registration is the basis of title. A lot has been provided and a lot has been cured by the new law.  The overriding interests have been substantially reduced. Still there are some potential overriding interests, which may give rise to problems and litigation. Some bolder steps are needed in following aspects.                                  

• The European Union perspective

This law will bring drastic changes both internally and externally. It is difficult to measure its projected changes. One thing may be said with greater certainty that interaction with EC and land registration system will bring some changes in the Act 2002. The Torrens and the English system of land registration have many commons. They have common concepts of the estate and trusts, and fragmentation of ownership. By contrast, the title registration in Europe (including Scotland) operates upon the Roman form of ownership. It does not have the coexistence of legal and equitable ownership. There are legal and psychological barriers between these systems. Lord Harrison, highlighted this factor in the House of Lord during the debate on the Land Registration Bill in 2001, in following words:

… The Bill applies to England and Wales, but it would be interesting to know to what degree it is compatible with the practice in Scotland and Northern Ireland. I also refer to European Union…we are talking about a modern world in which there is free movement of citizens and workers. We want to encourage the creation of a single market and make sure it works. I believe such requires and efficient and transparent system of land registration through out Europe.

Thus the Act 2002 is surely to be effected by European influence. This continental system is based on registration. All proprietary rights are registered in Germany and in many other EU members. There is no concept of recording of rights as in the Act 2002. This system is uncompromising on the issue of indefeasibilty. The register is to be taken correct in both the positive and negative sense. It is not possible to acquire land by adverse possession.

• One of the principle motivations of title registration is to display third party rights simply, so as to get rid of the need for an historical investigation of the title deed. Of course it does, but the picture is complex and is not so simple to be understood by a common man. It is still monopoly of professional lawyers. The Register of Titles does not show all the interests subject to which the registered estate is held. It does not show overriding interests. They are listed in statute in category form. This Register also does not show rights that could be registered but are not registered. These problems appear to be simple and trivial but ultimately may give rise to multiple and prolonged litigation in courts and dissatisfaction to the public.

• The leases even of shorter periods may have been excluded. They may create potential problems. The clear and transparent dealings have positive outcome and secret dealings create problem. There would have been no substantial difficulties if all leases had excluded from overriding interests. However, inclusion of PPP Leases is justified.
• Interests of actual occupant was the notorious and much litigated overriding right in the repealed law This factor has created a lot of problems in the past under the 1925 Act. It still has potential. When e- conveyancing will come into force, this concept will create problems. People would be making transactions while sitting in their homes and in fact some other interested party would be in possession. Some time fictitious titles are created.

• The franchise, the manorial, crown rents. These rights may have been easily excluded.
• The adverse possession continues in case of unregistered land. Even in some registered cases this ownership on the basis of possession can be claimed. Here the Act would have gone further and abolished all types and means of acquiring ownership of another’s property on the basis on adverse possession.
• There always has been and still is in new law a division between voluntary registration of titles and compulsory registration of title. This is creating problems and multiplies litigation. This distinction is to be abolished.
• The doctrine of part performance may again pose problem as in past. The law of property may conflict with the law of registration. Then, some champion human rights may exploit these provisions.
• The way easements were dealt with in the 1925 Act was unsatisfactory, confusing, problematic and notorious. The Act 2002 contains very few references to easements. This may create more or at least inherit problems of the previous provisions.

In short, the Act 2002 is a drastic step and will bring drastic changes. It has limited overriding interests. But the existing interests may create problem and courts may interpret in different ways. There is fluidity in many aspects, which always give chance to litigant minded and professionals. Social relations can be better managed and life can become better if every thing is clear and transparent. There is no prohibition in maintaining land in others name. It could have been improved further and interest of prospective purchaser might have been made safer and easier. It has to be aligned with the land registration system of other members of EU.

Bibliography

1. Land Law, Sweet & Maxwell’s Text book Series, by John Stevens and Robert Pearce, published by Sweet & Maxwell limited in 1998

2. The New Law of Land Registration, by Elizebeth Cooke, published in 2003 in North America by Hart Publishing, Oxford and Portland

3. Land Law, Seventh edition, by L G Riddall, published by LexisNexis UK

4. The Conveyancer and Property Lawyer, March-April 2003 pp137-156; May- June 2003 pp 215;November-December 2003; July- August 2003; September- October 2003; January-February 2003.

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