Добавил:

neus500 Опубликованный материал нарушает ваши авторские права? Сообщите нам.

Вуз:

Московский государственный юридический университет им. О.Е. Кутафина

Предмет:

Земельное право

Файл:

Экзамен зачет учебный год 2023 / ELC, Land Registration II

.pdf

Скачиваний:

Добавлен:

21.12.2022

Размер:

1.38 Mб

Скачать

☆

1 / 311 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 > Следующая >>>

LAW COMMISSION

H M LAND REGISTRY

LAND REGISTRATION FOR THE TWENTY-FIRST

CENTURY

A CONSULTATIVE DOCUMENT

CONTENTS

	Paragraph	Page
FOREWORD		1
PART I: INTRODUCTION		2
INTRODUCTION	1.1	2
The move to electronic conveyancing	1.2	2
The deficiencies of the present legislation	1.3	3
The need to develop principles appropriate to registered land	1.5	3
BACKGROUND	1.7	4
THE LAND REGISTRATION ACT 1997	1.10	5
THE CRITERIA FOR REFORM	1.11	6
The agreed objectives	1.12	6
CONSULTATION	1.15	7
THE EUROPEAN CONVENTION ON HUMAN RIGHTS	1.16	8
STRUCTURE OF THIS REPORT	1.17	8
ACKNOWLEDGEMENTS	1.19	9
PART II: LAND REGISTRATION TODAY –
A CRITICAL OVERVIEW		10
INTRODUCTION	2.1	10
GENERAL PRINCIPLES: THE CONCEPT OF LAND
REGISTRATION	2.2	10
Conveyancing in unregistered land	2.2	10
Registered land	2.4	11
The move towards total registration	2.8	12
THE LEGAL AND ADMINISTRATIVE FRAMEWORK	2.10	13
H M Land Registry	2.10	13
The register	2.11	13
INTERESTS IN REGISTERED LAND	2.13	14
Registrable interests	2.13	14
Overriding interests	2.16	15
Minor interests	2.19	16
MAKING DISPOSITIONS OF REGISTERED LAND	2.20	17
Introduction	2.20	17
Registered dispositions	2.21	17
Priority searches	2.24	18
Minor interests	2.25	19
RECTIFICATION AND INDEMNITY	2.36	22
Rectification	2.37	22
Indemnity	2.40	23
ADVERSE POSSESSION	2.43	24

	Paragraph	Page
CONVEYANCING ISSUES	2.45	25
The move to electronic conveyancing	2.45	25
Proof of title	2.49	26
PART III: DEFINITIONS AND CONCEPTS		27
INTRODUCTION	3.1	27
REGISTERED ESTATES	3.5	28
The present definition	3.5	28
Estates which may be registered	3.6	29
Registered estates: specific issues	3.7	29
Incorporeal rights over land	3.16	33
REGISTERED DISPOSITIONS	3.24	36
RIGHTS OF UNCERTAIN STATUS	3.28	37
Rights of pre-emption	3.29	37
Rights arising by estoppel or acquiescence	3.33	40
Inchoate rights arising under the Prescription Act 1832	3.37	41
“PURCHASERS”	3.39	43
The definition of “Purchaser”	3.39	43
Doctrines of notice and registered land	3.44	45
SUMMARY AND KEY ISSUES	3.51	49
PART IV: OVERRIDING INTERESTS - THE
APPROACH TO REFORM		51
INTRODUCTION	4.1	51
THE RATIONALE OF OVERRIDING INTERESTS	4.4	52
Why do we have overriding interests?	4.4	52
Categories of overriding interests	4.5	53
CRITICISMS OF OVERRIDING INTERESTS	4.11	55
Introduction	4.11	55
Title not absolute	4.12	56
Undiscoverability	4.13	56
Rectification but no indemnity	4.14	57
Unsatisfactory drafting	4.15	57
THE RECOMMENDATIONS IN THE THIRD REPORT	4.17	58
The approach to reform	4.17	58
Two specific proposals	4.18	58
STRATEGIES FOR REFORM	4.23	60
Introduction	4.23	60
Abolition of substantive rights?	4.24	61
Remove the status of overriding interest from certain rights?	4.25	61
Clarify the meaning of the legislation	4.32	65
Redefine the scope of certain overriding interests for the future	4.33	66
Encourage the registration of overriding interests	4.34	66
Electronic conveyancing	4.35	66
RIGHTS AND LIABILITIES UNDER THE GENERAL LAW
ARE NOT OVERRIDING INTERESTS	4.36	66
SUMMARY AND KEY ISSUES	4.37	67
PART V: OVERRIDING INTERESTS -
PROPOSALS FOR REFORM		69
INTRODUCTION	5.1	69
EASEMENTS AND ANALOGOUS RIGHTS	5.2	69

	Paragraph	Page
Section 70(1)(a)	5.2	69
Introduction	5.2	69
Easements and profits à prendre	5.6	70
Customary rights	5.25	78
Public rights	5.30	79
LIABILITIES HAVING THEIR ORIGINS IN TENURE	5.32	80
Section 70(1)(b)	5.32	80
Introduction	5.32	80
Tenurial obligations to repair highways	5.33	80
Quit rents, heriots and other charges	5.34	81
Crown rents	5.35	81
LIABILITY TO REPAIR THE CHANCEL OF ANY CHURCH	5.37	81
Section 70(1)(c)	5.37	81
LIABILITY IN RESPECT OF EMBANKMENTS,
AND SEA AND RIVER WALLS	5.38	82
Section 70(1)(d)	5.38	82
PAYMENTS IN LIEU OF TITHE, AND CHARGES
OR ANNUITIES PAYABLE FOR THE REDEMPTION
OF TITHE RENTCHARGES	5.40	83
Section 70(1)(e)	5.40	83
SQUATTERS’ RIGHTS	5.42	84
Section 70(1)(f)	5.42	84
Introduction	5.42	84
Recommendations in the Third Report	5.43	85
The treatment of adverse possession in this Report	5.44	85
Squatters’ rights as overriding interests: two problems	5.45	86
The solution: repeal section 70(1)(f) and protect
only squatters in actual occupation	5.49	87
THE RIGHTS OF OCCUPIERS	5.56	90
Section 70(1)(g)	5.56	90
Introduction	5.56	90
The background to the paragraph	5.57	91
The recommendations in the Third Report	5.59	92
Retention of the overriding status of occupiers’ rights	5.61	93
Rights under settlements created before 1997	5.63	94
Rights of those in receipt of rents and profits	5.64	94
Provision for fraud or estoppel	5.69	98
Occupation of part	5.70	98
Should the occupier’s actual occupation be apparent?	5.71	98
Other matters	5.74	99
INTERESTS EXCLUDED FROM THE EFFECT
OF REGISTRATION	5.78	101
Section 70(1)(h)	5.78	101
LOCAL LAND CHARGES	5.80	102
Section 70(1)(i)	5.80	102
MANORIAL RIGHTS AND FRANCHISES	5.84	103
Section 70(1)(j)	5.84	103
Seignorial and manorial rights	5.84	103
Franchises	5.86	104

vii

	Paragraph	Page
LEASES NOT EXCEEDING 21 YEARS	5.87	104
Section 70(1)(k)	5.87	104
Introduction	5.87	104
The recommendations in the Third Report	5.88	105
Reduction in length?	5.90	106
Reversionary leases	5.91	106
Time-share leases	5.92	106
Transmission of covenants	5.93	107
CERTAIN MINERAL RIGHTS WHERE TITLE
WAS REGISTERED PRIOR TO 1926	5.95	107
Section 70(1)(l)	5.95	107
RIGHTS TO COAL	5.97	108
Section 70(1)(m)	5.97	108
SECTION 70(2) AND (3) OF THE LAND
REGISTRATION ACT 1925	5.99	109
GENERAL DEFENCES OF FRAUD AND ESTOPPEL	5.108	113
Defences to the assertion of all overriding interests	5.108	113
Waivers of priority	5.109	113
THE “REGISTRATION GAP”	5.112	115
SUMMARY AND KEY ISSUES	5.114	116

PART VI: THE PROTECTION OF MINOR
INTERESTS AND RESTRICTIONS ON
DEALINGS WITH REGISTERED LAND		120
INTRODUCTION	6.1	120
THE PRESENT LAW	6.3	121
Notices	6.3	121
Cautions against dealings	6.10	126
Cautions against first registration	6.24	133
Restrictions	6.28	135
Inhibitions	6.37	138
CRITICISMS OF THE PRESENT LAW	6.43	141
Introduction	6.43	141
Unnecessary complexity	6.44	141
Inadequacy of cautions	6.45	141
Miscellaneous defects	6.46	142
THE RECOMMENDATIONS IN THE LAW COMMISSION’S
THIRD REPORT ON LAND REGISTRATION	6.47	142
PROPOSALS FOR REFORM	6.48	142
Introduction	6.48	142
Notices and cautions	6.50	143
Restrictions and Inhibitions	6.55	145
Cautions against first registration	6.62	148
MAKING ENTRIES WITHOUT REASONABLE CAUSE	6.65	149
Introduction	6.65	149
Sanctions against improper registration	6.66	149
Unreasonably resisting the removal of an entry on the register	6.67	150
Power to remove entries	6.68	150

viii

	Paragraph	Page
TRANSITIONAL ARRANGEMENTS	6.69	151
SUMMARY AND KEY ISSUES	6.70	151
PART VII: PRIORITIES		154
INTRODUCTION	7.1	154
THE PRESENT LAW	7.3	154
The priority of registered dispositions	7.3	154
The priority of registered charges	7.5	155
The priority of overriding interests	7.10	157
The priority of minor interests	7.15	159
Priority searches	7.20	161
THE RECOMMENDATIONS IN THE
LAW COMMISSION’S THIRD AND FOURTH
REPORTS ON LAND REGISTRATION	7.22	162
Background: the Fourth Working Paper on Land
Registration and the protection of financial charges	7.22	162
The recommendations in the Third Report on Land Registration	7.24	163
The draft bill in the Fourth Report	7.26	164
CRITICISMS OF THE PRESENT LAW	7.27	164
PROPOSALS FOR REFORM	7.28	165
Likely developments in land registration and their implications	7.28	165
The fundamental issue: priority of minor interests	7.31	166
Priority of overriding interests	7.35	167
Other issues	7.36	168
SUMMARY AND KEY ISSUES	7.40	168
PART VIII: RECTIFICATION OF THE REGISTER		171
INTRODUCTION	8.1	171
THE NATURE OF RECTIFICATION	8.3	171
THE PRESENT LAW	8.4	172
The grounds on which the register may be rectified	8.4	172
Restrictions on the power to rectify	8.23	179
The effect of rectification	8.32	185
THE RECOMMENDATIONS IN THE
LAW COMMISSION’S THIRD AND FOURTH REPORTS	8.34	186
Grounds for rectification	8.34	186
Restrictions on rectification	8.35	186
CRITICISMS OF THE PRESENT LAW	8.36	187
PROPOSALS FOR REFORM	8.40	187
The essentials of an effective scheme of rectification	8.40	187
Grounds for rectification	8.41	188
Rectification against a proprietor who is in possession	8.47	190
Rectification and derivative interests	8.54	193
SUMMARY AND KEY ISSUES	8.56	194
PART IX: MORTGAGES AND CHARGES		196
INTRODUCTION	9.1	196
REGISTERED CHARGES	9.2	196
Definition of “registered charge”	9.2	196
Registered charges as charges by way of legal mortgage	9.4	197
The powers of a registered chargee	9.6	198
EQUITABLE MORTGAGES AND CHARGES	9.8	199
Liens arising from a deposit of the land certificate	9.8	199

	Paragraph	Page
SUMMARY AND KEY ISSUES	9.12	200
PART X: ADVERSE POSSESSION AND
PRESCRIPTION		202
INTRODUCTION	10.1	202
ADVERSE POSSESSION	10.4	203
The nature and function of adverse possession	10.4	203
Adverse possession and registered land: the present law	10.20	209
ADVERSE POSSESSION: PROPOSALS FOR REFORM	10.43	221
Introduction	10.43	221
Adverse possession of registered land: a new scheme of
substantive law	10.44	222
Summary of provisional recommendations	10.65	230
The machinery for giving effect to adverse possession
where title to land is registered	10.70	233
The machinery for giving effect to adverse possession:
summary of recommendations	10.78	236
PRESCRIPTION	10.79	236
Introduction	10.79	236
Prescription at common law	10.81	237
Prescription under the Prescription Act 1832	10.82	237
Prescription by lost modern grant	10.84	239
Why the present law needs to be changed to accommodate
reform of the land registration system	10.87	240
Proposals for reform	10.90	241
SUMMARY AND KEY ISSUES	10.95	243
PART XI: CONVEYANCING ISSUES		250
INTRODUCTION	11.1	250
THE CREATION AND TRANSFER OF ESTATES, RIGHTS
AND INTERESTS IN OR OVER REGISTERED LAND	11.2	250
Introduction: the move to electronic conveyancing	11.2	250
A brief summary of the present system	11.3	251
The defects in the present system	11.5	252
The proposed system	11.8	253
What will be the likely benefits of the system proposed?	11.14	256
Are there possible drawbacks?	11.15	256
What has happened to date?	11.17	258
What legislation will be required to enable electronic
conveyancing to be introduced?	11.18	259
A specific problem: the assignment of leases	11.26	261
THE OBLIGATIONS OF A VENDOR IN DEDUCING TITLE
WHEN MAKING A DISPOSITION OF REGISTERED LAND	11.30	263
Introduction	11.30	263
The obligation to disclose latent defects in title prior to contracting	11.32	264
The obligation to convey to the buyer on completion a title that is
in accordance with the contract	11.34	265
A seller’s obligation to prove that he or she has a title that accords
with the contract	11.35	266
Converting good leasehold title to absolute title	11.49	272
OTHER CONVEYANCING ISSUES	11.51	273
SUMMARY AND KEY ISSUES	11.52	273

	Paragraph	Page
PART XII: SUMMARY OF ISSUES
FOR CONSULTATION		278
INTRODUCTION	12.1	278
DEFINITIONS AND CONCEPTS	12.2	278
Leases	12.2	278
Incorporeal rights over land	12.4	279
Registered dispositions	12.7	279
Rights of uncertain status	12.8	279
“Purchasers”	12.12	280
OVERRIDING INTERESTS	12.13	280
General issues	12.13	280
The specific categories of overriding interests	12.15	281
Noting overriding interests on the register: Land Registration
Act 1925, s 70(2) and (3)	12.33	286
General defences of fraud and estoppel	12.35	287
The “registration gap”	12.37	287
THE PROTECTION OF MINOR INTERESTS AND
RESTRICTIONS ON DEALINGS WITH REGISTERED LAND	12.38	288
Notices and cautions	12.38	288
Restrictions and inhibitions	12.40	289
Cautions against first registration	12.43	290
Making entries without reasonable cause	12.44	290
Power to remove entries	12.46	291
Transitional arrangements	12.47	291
PRIORITIES	12.48	291
Priority of minor interests	12.48	291
Priority of overriding interests	12.50	291
Other issues	12.51	292
RECTIFICATION OF THE REGISTER	12.53	292
Grounds for rectification	12.53	292
Rectification against a proprietor who is in possession	12.57	293
MORTGAGES AND CHARGES	12.62	294
Registered charges	12.62	294
Equitable mortgages and charges	12.65	295
ADVERSE POSSESSION AND PRESCRIPTION	12.66	295
Adverse possession	12.66	295
The fundamental issue of principle	12.66	295
The proposed scheme of adverse possession for registered land	12.67	295
The machinery for giving effect to adverse possession where
title is registered	12.73	298
Prescription	12.74	299
CONVEYANCING ISSUES	12.75	299
The creation and transfer of estates, rights and interests in or over
registered land	12.75	299
The obligations of a vendor in deducing title when making a
disposition of registered land	12.81	301
Other conveyancing issues	12.83	301
APPENDIX		302

LAND REGISTRATION FOR THE

TWENTY-FIRST CENTURY:

A CONSULTATIVE DOCUMENT

THE SECOND REPORT OF A JOINT WORKING GROUP

ON THE IMPLEMENTATION OF THE LAW COMMISSION’S THIRD AND FOURTH REPORTS ON LAND REGISTRATION

To the Right Honourable the Lord Irvine of Lairg, Lord High Chancellor of Great Britain

FOREWORD

In our First Report, the recommendations in which have since been enacted by the Land Registration Act 1997, we promised that we would publish a Second Report, which would “seek views on much more extensive reforms to the land registration system with a view to the complete replacement of the Land Registration Act 1925”. We now fulfil that promise.

We seek views on a wide range of proposals which will have the effect of making dealings in land much simpler, quicker and cheaper. At the same time, our proposals, if accepted, will mean that both title to registered land and the rights in and over it will be more secure. Underlying our proposals is the likely move to electronic conveyancing over the coming decade - the most revolutionary change ever to take place in conveyancing practice. It is important that there should be in place in the near future the necessary legislative framework to enable this change to happen. The principles of law which govern registered land must reflect the move to electronic conveyancing and this has prompted many of our recommendations.

When such important changes are to come about, it is very important that the proposals should be fully and widely considered. We therefore urge those with any interest in the conveyancing system to read and respond to this Report.

PART I

INTRODUCTION

1.1In this, its Second Report, the Joint Working Group makes proposals for the replacement of the Land Registration Act 1925.1 The Report is in the form of a Consultation Paper. It is intended that draft legislation will be prepared in the light of the responses to it. A draft Bill, together with Notes on Clauses and an introduction, setting out the results of the present consultation, is likely to be published in the summer of 1999. This will enable the Bill to be scrutinised in advance of any possible legislation. On any basis, the wholesale replacement of the Land Registration Act 1925 is a major undertaking. In the following paragraphs we set out our principal reasons for doing so.

The move to electronic conveyancing

1.2The most important single reason for new legislation has in fact emerged during the course of preparing this Report, and it is the progressive move to electronic conveyancing. This is likely to be the most revolutionary reform to the conveyancing system in England and Wales that has yet taken place. A number of fundamental changes have already occurred over the last few years—

(1)the whole of England and Wales has been subject to compulsory registration of title since December 1990, which means that most conveyances of unregistered land now have to be completed by registration;2

(2)the register is now open and can be searched without the authority of the registered proprietor;3

(3)the register is already computerised and most titles have been entered on the computer; and

(4)a system of direct access to the computerised register, introduced in January 1995, enables those who are connected to it to inspect the register almost instantly.4

However, the most significant change is the likely introduction of the electronic transfer of land and creation of property rights in the course of the coming decade or so. Indeed the publication of this Report coincides with the first step towards electronic conveyancing. HM Land Registry has just commenced a trial with a lending institution of a system of electronic requests for the discharge of mortgages.5 The probable outcome of these developments will be a system under which registration becomes an

The background to this Report is explained below, para 1.7.

See Land Registration Act 1925, s 123 (as substituted by Land Registration Act 1997, s 1). See Land Registration Act 1925, s 112 (as substituted by Land Registration Act 1988, s 1).

4For details, see Ruoff & Roper, Registered Conveyancing, 30-06; Appendix F-08 - F-12; and below, para 11.17.

5See below, para 11.17.

essential element for the creation and transfer of estates, rights and interests in land, performing a similar function to the formal requirements that exist under the present law,6 and which it would replace.7 The implications of these changes are considerable and underlie much of the thinking in this Report. The legislative structure must be such as to enable them to happen in an orderly manner, and it must also reflect their likely implications.8

The deficiencies of the present legislation

1.3The present legislation is widely acknowledged to be both badly drafted and lacking in clarity. It is also very complicated. Not only are there the 148 sections of the Act, but there are also several hundred rules made under it.9 There is no clear division between what is in the Act and what is found in the rules. The land registration system has been made to work very effectively, but this has often been in spite of rather than because of its legislative structure. There is an obvious need for clear modern legislation, particularly as most dealings now involve land which either is, or will (as a result of the transaction) become, registered.10

1.4Furthermore, after nearly three-quarters of a century on the statute book, a number of practical difficulties have arisen with the present legislation that need to be remedied. Some of these require significant changes to the legislation.

The need to develop principles appropriate to registered land

1.5Largely because of the rather tortuous history of the Land Registration Act 1925,11 it has always been accepted that the principles of registered land should, so far as possible, be the same as they are where title is unregistered. The Land Registration Act 1925 has been perceived as mere machinery for translating those principles into a registered format. However, this perception has never been wholly true, and there are in fact some striking differences between registered and unregistered land. Examples can be found in relation to the protection of the rights of occupiers,12 the priority of equitable interests,13 and the rights of adverse possessors.14

1.6In most legal systems within the Commonwealth that have adopted a system of title registration, it has been recognised that the registered and unregistered systems are

See Law of Property Act 1925, s 52.

Instead of the three-stage process that presently exists of executing an instrument which effects the disposition, lodging it with the Registry, and then having it registered, there would be just one step: registration. See below, paras 2.45 and following, and 11.3 - 11.7.

As we explain later in this Report, the introduction of electronic conveyancing will not prevent those who wish to undertake their own conveyancing from doing so: see paras 2.48, 11.11.

9Principally the Land Registration Rules 1925 (as amended).

10For criticisms of the land registration system, see, eg Clark v Chief Land Registrar [1994] Ch 370, 382; Sir Robert Megarry & Sir William Wade, The Law of Real Property (5th ed, 1984), p 196; Roger J Smith, Property Law (2nd ed 1998), pp 257 - 259.

11For an admirable account, see J Stuart Anderson, Lawyers and the Making of English Land Law 1832 - 1940 (1992).

12See below, para 5.56.

13See below, para 7.19.

14See below, paras 10.28 and following.

1 / 311 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 > Следующая >>>

Соседние файлы в папке Экзамен зачет учебный год 2023

#
21.12.20224.73 Mб27Dixon, Principles of Land Law.pdf
#
21.12.2022259.44 Кб23Dnes, Lueck, Asymmetric Information and the Law of Servitudes Governing Land.pdf
#
21.12.2022336.16 Кб23Dragomir, Tenancy Law Romania.pdf
#
21.12.20221.39 Mб22Dumas, Registering Title to Land.pdf
#
21.12.2022286.71 Кб24Edlung, Tenancy Law Denmark.pdf
#
21.12.20221.38 Mб23ELC, Land Registration II.pdf
#
21.12.20221.85 Mб23ELC, Land Registration.pdf
#
21.12.20225.76 Mб25Ellickson, Property in Land.pdf
#
21.12.2022522.31 Кб25England and Wales.PDF
#
21.12.20222.35 Mб23Esposito, A Comparison of the Australian (Torrens) System of Land Registration of 1858 and the Law of Hamburg in the 1850s.pdf
#
21.12.20222.89 Mб53European Condominium Law.pdf