Aveneu Park, Starling, Australia

Title 2002). Supremacy of the Register can be seen

Title deeds was the way to prove ownership on land before
there was a system of registration of title. The system of investigating the
title by examining the deeds and searching the Land Charges Register is an
impractical process as purchaser may also run risks of subjection to third
party rights which were undiscoverable. However, currently registration of
title works on that information in relation to an estate in land is held by the
Land Registry which eliminates the need to rely on title deeds. The aim is that
purchasers should be able to locate all relevant info relating to a property on
the register of title which includes both the information of the owners of the
property and details of right held by third parties. This essay will discuss
the extent of truth to state that “title in registered land is a bureaucratic
fact of registration.”

 

Title registration introduced by the Land Register Act 1925
(LRA 1925) has three distinct principles; mirror, curtain and insurance. The
mirror principle basically aims for the register to accurately reflect the
position with regard to the ownership of the land and all the third party
rights in the land. However, register of title is not a true reflection of all
third party interest although the underlying theme of the LRA 2002 focuses on
registration to ensure property rights are protected, the 2002 Act endeavours
to ensure that where interest have the potential to override registration they
are least ascertainable through inspections of the land.1
Curtain principle is basically putting interest that will be overreached
‘behind the curtains’. 2
Lastly, insurance principle is that the accuracy of the register is governed by
the state and in the event of any inaccuracies, register will be rectified or
altered. Any person affected by this can usually claim for indemnity (s103 LRA
2002).

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Supremacy
of the Register can be seen from several provisions of the LRA 2002.3
Section 58 states that the register is self-conclusive, which means that someone
who aside from registration, with no legal estate is deemed the owner of the
legal estate by virtue of the simple fact of being the registered proprietor.4
Additionally, subsection 23 and 24 shown that anyone who is a registered
proprietor can exercise an owner’s powers. As a result of section 27,
dispositions including transfers, grants and charges effecting a legal estate
have no effect at law until registered. Also, section 29 ensures that
registration of a transaction gives priority over all interest not protected on
the register with the exception of a reduced list of overriding interests (NB the last
of reductions to interests protected as overriding interests was made by LRA
2002 in effect on 13 October 2013). The legal
position of each of the registered owners is problematic as two people own the
same legal title independently of each other and can exercise the powers of an
owner independently of each other. The possibilities for attacks on apparent
interests in the land are significant.

 

The case of
Fitzwilliam v Richall Holdings Services Ltd shown that a fraudster cannot deprive
a landowner’s title to land just because the fraudster succeeded in fooling the
Land Registry as well as others.5
This case questioned if the title register should be conclusive irrespective of
the circumstances in which the title was registered and the court in the case
allowed for alteration of the land register pursuant to schedule 4 of the LRA
2002. In this case, F had been the registered legal owner of the property
before R’s registration of ownership. R registered his ownership following the sale of the concerned property
by a third-party; who purported to have been granted power of attorney by F to
sell the property. However, F claimed that such powers were not granted and
accordingly submitted that he was entitled to have the register altered in his
favour under the LRA 2002. Malory
v Cheshire Homes, decided upon application of the LRA 1925 was applied in the case
of Fitzwilliam, is evidence that the purposes behind the LRA 2002 are not being
forwarded. Basically, the fraudster tricked the Land Registry into listing them
as proprietors of the land, which they then sold the Cheshire. Malory the true
owner sought rectification after realising what happened. Despite the innocence
of the respondents, Cheshire was held to be subject to the rights of the Malory
as beneficial owner. Newey J in his decision of Fitzwilliam, referred to the
comments of Martin Dixon that pointed out that ‘acceptance of the Malory
approach would be to import principles of unregistered conveyancing into
registered land and would wholly contradict the system of registration of title
and the move to e-conveyancing that the LRA 2002 is designed to facilitate.’

 

Another issue to
note with the system relates to rectification;6 a
correction of mistake and rectification of the register other than adverse
possession is governed by Sch 4 LRA 2002. Deputy Adjudicator Michael Marks
explain in his judgement in Knights Construction Ltd v Robert Mac Ltd that
prior to LRA 2002 the discretion to rectify against a registration based on a
void would be exercised title even against innocent third parties unless
exceptional circumstances were present.7 It
was suggested that the approach to rectification shouldn’t have changed as a
result of the introduction of LRA 2002 and also concludes that the fact the land
was of practical benefit to the registered owner and/or had a value, wasn’t exceptional.8 It
was pointed out in the joint report from the Law Commission and Land Registry
that foreshadowed LRA 2002 at para 10.13 of the report stated : “The thinking behind the protection of a proprietor in
possession is obvious enough. When a person is registered as proprietor of a
parcel of land and is in possession of it, there should be a presumption
against rectifying the register against him or her. Thus in a case where, by
mistake, two neighbouring landowners are both registered as proprietors of a
strip of land on their common boundary the register should (in general) be
rectified against the one in possession of the strip. The registered titles thereby come to
reflect the practical reality of the situation.”

 

 

 

 

 

 

 

 

There are concerns voiced on the
last consultation on the introduction of e-conveyancing on basic premises that
this would cause problems from a hacking incident. However, the land registry has
a huge amount of documents via electronic means which facilitates the
conveyancing procedure and land lawyers. However, if the introduction of this
electronic registration were ever seen, floodgates would open for claims against
the conclusiveness of the register (part 8 of the LRA 2002 for the applicable
statute should e-conveyancing be introduced).9

 

The Law Commission published a consultation paper suggesting amendments
and updates to the LRA 2002 which covers a wide range of issues.10
Increment of fraud in the conveyancing process lead to the Law Commission suggesting
importance in development of conveyancing process, especially in relation to
e-conveyancing, are monitored to prevent fraud.11
It was said that the aim of the 2002 act was to facilitate e-conveyancing and
to assist with the delay in updating the register, however this did not
materialise due to concerns over fraud, take up and timing.12
Furthermore, suggestions have been made that the Law Commission is likely to
provide a package proposal that includes a workable blueprint for
e-conveyancing, the decision however is likely to be political.13
E- conveyancing has a better prospect of transition to a workable reasonably
secure system even though there is a implication for increased fraud associated
with it . 14Additionally, clarity
about rectification/alteration and increased protection against fraud would be
attractive.

1
Barbara bogusz & roger saxton
complete land law pg 105

2
Barbara bogusz & roger
saxton complete land law pg 105

3
https://www.newlawjournal.co.uk/content/lie-land

4
https://www.newlawjournal.co.uk/content/lie-land

5
Nair
A, “INTERPRETING SECTION 58 OF THE LAND REGISTRATION ACT 2002: THE LIMITS OF
‘STATUTORY MAGIC'” (2013) 72 The Cambridge Law Journal 257

6
http://blogs.lexisnexis.co.uk/purposebuilt/time-to-review-land-registration/

7
Knights Construction (March)
Ltd v Robert Mac Ltd 2011 2 EGLR
123

8
https://www.newlawjournal.co.uk/content/lie-land

9
http://www.keepcalmtalklaw.co.uk/land-registration-act-problems-remain/

10
http://www.lawsociety.org.uk/news/stories/updating-the-land-registration-act-2002/

11
http://www.lawsociety.org.uk/news/stories/updating-the-land-registration-act-2002/

12
http://www.lawsociety.org.uk/news/stories/updating-the-land-registration-act-2002/

13
http://blogs.lexisnexis.co.uk/purposebuilt/time-to-review-land-registration/

14
http://blogs.lexisnexis.co.uk/purposebuilt/time-to-review-land-registration/

 

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