Экзамен зачет учебный год 2023 / ELC, Land Registration II

The obligations of a vendor in deducing title when making a disposition of

registered land

11.67We examine the three obligations that a landowner who intends to sell his or her land owes to the intending buyer. These are—

(1)to disclose latent defects in title prior to contracting;

(2)to convey to the buyer on completion a title that is in accordance with the contract; and

(3)to prove that title.

We make no recommendations in relation to (1) and (2), because no reform appears to be needed. However, we consider that the rules which govern (3) are in need of review.

11.68As regards the proof of title to registered land, section 110 of the Land Registration Act 1925 lays down in detail the seller’s responsibilities as regards the production of copies of the register and other matters.140 The section also deals with the situation where a seller is not a registered proprietor, as where he or she has merely contracted to purchase the land and has then entered into a subsale.141 Section 110 reflects the state of the law when it was enacted. However, the register is now open so that it is no longer necessary to obtain a seller’s consent to search the register, or to obtain copies of documents referred to in the register. Furthermore, the system of searching the register is now much simpler and cheaper. In practice, the prescriptive character of section 110 and its inflexibility, can create unnecessary difficulties for the parties.

11.69We provisionally conclude that the first five subsections of section 110 of the Land Registration Act 1925 should not be reproduced in any new legislation. Parties would be free to make their own contractual arrangements as to the title which the buyer could require. As a safeguard, in case this freedom were to be abused, we provisionally recommend that the Lord Chancellor should have a power to make rules—

(1)specifying the evidence of title that might be required on a disposition of registered land; and/or

(2)the steps which a seller who is not the registered proprietor might be required to take to perfect his or her title.

It is not intended that such rules should be made in the absence of evidence of abuse. If made, they would override the terms of any agreement between the parties.

Converting good leasehold to absolute title

11.70We consider - and reject - any possible power by which a leaseholder who is registered with good leasehold title might compel those with superior titles to deduce them, so

that the title to the lease might be upgraded to absolute. The heavy-handed sanctions that would be needed to make any such power effective would, in our view,

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considerably outweigh the advantages of such a power.

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PART XII

SUMMARY OF ISSUES FOR

CONSULTATION

INTRODUCTION

12.1In this Part we summarise the issues on which we seek the views of readers. Some readers may not wish to comment on all issues: their remarks are no less welcome. We would also welcome comments not only on the issues specifically listed below but on any others that are raised by this Report, or which concern land registration but have not been addressed in this paper.

DEFINITIONS AND CONCEPTS

Leases

12.2At present, only leases with more than 21 years to run may be registered. Do you think—

(1)that the present law should remain unchanged;

(2)that leases granted for a term of more than 14 years should be required to be completed by registration;

(3)that leases granted for a term of 21 years would, as now, be required to be registered, but leases of a term of more than 14 years could be registered if the tenant (or some other person having the power to register) so wished but would otherwise take effect as overriding interests; or

(4)that there should be some other requirements for the registration of leases (please specify)?1

12.3Do you agree with our provisional recommendations that—

(1)there should, in any event, be a power for the Lord Chancellor by rule to reduce the duration of leases that—

(a)may be registered as registered estates, both on first registration and in relation to dealings by a registered proprietor; and (commensurately with such a change)

(b)can exist as overriding interests and cannot be noted on the register; and

(2)any such rule should be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament?2

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Incorporeal rights over land

Incorporeal rights in gross

12.4At present, incorporeal rights in gross (such as fishing or shooting rights) and franchises (such as the right to hold a market) are not capable of being registered with their own titles. Do you consider that—

(1)profits à prendre in gross; and/or

(2)franchises;

should be capable of being registered with their own titles?3

Manors

12.5At present, manors can be registered with their own titles. Do you agree with our provisional recommendation that this should cease to be so, and that manors should cease to be regarded as land for the purposes of the Land Registration Act?4

12.6If you do, do you also agree with our provisional recommendation that, in consequence, the exception from compulsory registration of “corporeal hereditaments which are part of a manor and are included in the sale of a manor as such”5 should be repealed?6

Registered dispositions

12.7Do you consider that there are any rights over or interests in land, the creation or transfer of which ought to be registered dispositions when completed by registration, but which at present are not? If you do, on what basis do you think that they should be registered dispositions?7

Rights of uncertain status

12.8We examine three particular rights, where there is some uncertainty as to the status of the right. We provisionally recommend in each case that, where such rights affect registered land, the matter be clarified in such a way that the right is to be regarded as an interest in the land, so that it is capable of protection as an overriding interest (if it falls within one of the categories of overriding interests) or as a minor interest.

Rights of pre-emption

12.9Do you agree with our provisional recommendation that, for the purposes of determining priorities, a right of pre-emption should take effect as an interest in registered land from the time when it is created?8

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Rights arising by estoppel or acquiescence

12.10Do you agree with our provisional recommendation that an equity arising by estoppel or acquiescence in relation to registered land should be regarded as an interest from the time at which it arises?9

Rights arising by prescription

12.11Do you agree with our provisional view that rights acquired or in the course of being acquired by prescription over registered land, whether or not such rights are inchoate, should be regarded as an interest in that land?10

“Purchasers”

12.12Do you agree with our provisional recommendations that—

(1)“purchaser” should be defined to mean “any person (including a mortgagee or lessee) who, for valuable consideration takes an interest in land or in a charge on land”;

(2)“valuable consideration” should for these purposes be defined to mean money or money’s worth but should not include marriage or a nominal consideration in money;

(3)a transfer of land (whether registered or unregistered) for marriage consideration should take effect as a gift for the purposes of the Act;

(4)it should be made clear in the Act that the doctrine of notice shall not apply to dealings with registered land except in those cases where the Act expressly provides to the contrary.

If you disagree, what is your preferred approach to each of these issues?11

OVERRIDING INTERESTS

General issues

Indemnity for overriding interests?

12.13In its Third Report on Land Registration, the Law Commission recommended that certain overriding interests should cease to be so, but should become a new type of right called “general burdens”.12 As regards the remaining overriding interests, it recommended that indemnity should be payable in certain circumstances where the register was rectified to give effect to an overriding interest. We have expressed our concerns about these proposals, and, in particular, about the unquantifiable but potentially considerable cost of meeting them (which would have to be met by all users

9

See above, para 3.36.

10See above, para 3.38. Rights claimed under the Prescription Act 1832 are regarded as inchoate: see above, para 3.37.

11See above, para 3.50.

12These were public rights, chancel repair liability, local land charges, certain pre-1926 mineral rights, and franchises.

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of the Land Registry).13 In the light of these concerns, do you agree with our

provisional recommendation that—

(1)the rule that no indemnity should be payable where the register is rectified to give effect to an overriding interest should be retained; and

(2)in consequence that there should be no new category of “general burdens”?14

No overriding status for rights under the general law

12.14Do you agree with our provisional recommendation that the statutory provisions governing overriding interests should be redrafted to make it clear that—

(1)only proprietary rights could subsist as overriding interests; and

(2)rights and liabilities that were—

(a)merely potential and not actually in existence; or

(b)imposed in relation to property generally;

would bind a transferee of registered land under and to the extent that is provided by the general law.15

The specific categories of overriding interests

Introduction

12.15We set out below our provisional recommendations as to what should be done in relation to each of the existing categories of overriding interest. In some cases we provisionally recommend abolition, on the ground that the right is, to the best of our knowledge, obsolete. In relation to such rights, we are particularly anxious to learn whether our information is correct. If apparently obsolete rights are in fact still enforced, their overriding status must be retained. We would therefore be grateful for information about specific instances of such rights and the details of them.

Easements and analogous rights: Land Registration Act 1925, s 70(1)(a)

12.16Do you agree with our provisional recommendation that—

(1)all easements and profits à prendre should be overriding interests except where—

(a)they have been expressly granted; or

(b)they arise from a contract to grant such a right expressly;

(2)without prejudice to the generality of that rule, the following easements and

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profits à prendre (whether legal or equitable) should be overriding interests

unless and until they are noted on the register of the servient title—

(a)those arising by implied grant or reservation, including rights arising by the operation of section 62 of the Law of Property Act 1925;

(b)those that are acquired or are in the course of being acquired by prescription;

(c)those to which a property was subject at the time of its first registration, which were legal rights but were not noted on the register; and

(d)those which are appurtenant to an overriding interest;

(3)to the extent that there was any conflict between the principles in (1) and (2), those in (2) should prevail;

(4)rule 258 of the Land Registration Rules 1925 should be revoked;

(5)where an easement or profit à prendre takes effect as an overriding interest, there should be a rebuttable presumption that the right had been abandoned if the party asserting it was unable to show that it had been exercised within the previous 20 years; and

(6)there should be transitional provisions by which easements and profits à prendre which are—

(a)in existence when the legislation comes into force; and

(b)overriding interests immediately prior to that date even if they would not be created thereafter;

should retain their status as overriding interests?16

Customary rights: Land Registration Act 1925, s 70(1)(a)

12.17Do you agree with our provisional recommendation that—

(1)as customary rights arising by tenure have ceased to exist they should no longer be listed as overriding interests; and

(2)unless and until they are noted on the register, customary rights that are exercisable by all or some of the inhabitants of a particular locality (other than those arising by tenure) should be a separate and distinct category of overriding interests?17

Public rights: Land Registration Act 1925, s 70(1)(a)

12.18Do you agree with our provisional recommendation that—

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(1)“public rights” should remain as a category of overriding interest in cases where the rights have not been noted on the register; and

(2)they should be defined as rights exercisable by any member of the public over land under the general law?18

Liabilities having their origin in tenure: Land Registration Act 1925, s

70(1)(b)

12.19On the information available to us, we believe that all such rights are now obsolete. Do you agree with our provisional recommendation that—

(1)section 70(1)(b) should be repealed; and

(2)any tenurial liabilities within the paragraph that may still exist should cease to be overriding interests and should take effect as minor interests instead?19

If you know of any rights within this category that are still in existence, please provide

us with details of them.

Liability to repair the chancel of any church: Land Registration Act 1925, s

70(1)(c)

12.20Do you agree with our provisional recommendation that chancel repair liability should remain an overriding interest?

Liability in respect of embankments, and sea and river walls: Land Registration Act 1925, s 70(1)(d)

12.21Do you agree with our provisional recommendation that—

(1)the liability in respect of embankments, and sea and river walls should remain as an overriding interest; and

(2)that it should be confirmed by any legislation that such liability is limited to that arising by prescription, grant, covenant (supported by a rentcharge), custom or tenure?20

Payments in lieu of tithe, and charges or annuities payable for the

redemption of tithe rentcharges: Land Registration Act 1925, s 70(1)(e)

12.22Do you agree with our provisional recommendation that liability to make payments (commonly known as corn rents) by any Act of Parliament other than one of the Tithe Acts, out of or charged upon any land in respect of the commutation of tithes, should continue to be an overriding interest, but that section 70(1)(e) should otherwise be repealed?21

18See above, para 5.31.

19See above, para 5.36.

20See above, para 5.39.

21See above, para 5.40.

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Squatters’ rights: Land Registration Act 1925, s 70(1)(f)

12.23At present squatters’ rights constitute an overriding interest under this paragraph, whether or not the squatter is still in occupation of the land. Do you consider that—

(1)the existing law should remain unchanged; or

(2)section 70(1)(f) should be repealed and rights acquired or in course of being acquired under the Limitation Acts—

(a)should no longer be overriding interests unless the adverse possessor was in actual occupation for the purposes of section 70(1)(g); and

(b)should otherwise take effect as minor interests unless and until the adverse possessor was registered as proprietor?

If you favour (2)—

(1)do you consider that there should be transitional arrangements by which, where a person was in adverse possession at the time when any legislation came into force, their rights should remain an overriding interest for a period of three years, even if they were not in actual occupation?; and

(2)do you agree that a squatter should be able to claim damages for trespass against a registered proprietor who sold land to which the squatter was entitled to be registered as proprietor?22

The rights of occupiers: Land Registration Act 1925, s 70(1)(g)

12.24Do you agree with our provisional recommendation that—

(1)subject to the qualifications set out below, the rights of persons in actual occupation should continue to enjoy protection as overriding interests;

(2)for the purposes of this paragraph, persons would be in actual occupation of land only if they were physically present on the land and their occupation was patent, that is, apparent on a reasonable inspection of the land;

(3)section 86(2) of the Land Registration Act 1925 should be amended so that the rights of beneficiaries under a settlement (whether created under the provisions of the Settled Land Act 1925 or any other statute) should be capable of existing as overriding interests;

(4)the present exception by which rights that would otherwise be binding under section 70(1)(g) are not because they are not disclosed on inquiry, should be retained, and it should be made clear that the inquiry that is required is that which is reasonable in the circumstances; and

(5)where a person is in occupation of part only of the property in or over which he or she has rights, his or her rights should be an overriding interest within the

22 See above, para 5.55.

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paragraph only as regards the land which he or she occupies?23

12.25Do you think that the rights of persons who are in receipt of the rents and profits of land—

(1)should continue to be overriding interests; or

(2)should—

(a)continue to be overriding interests only if they were so at the time when the legislation came into force; but

(b)cease to have the status of overriding interests where those rights arose or were created after the legislation was brought into force?

If you favour (2) (which we provisionally recommend), in relation to those rights that

remain overriding interests under (a), do you think that status—

(1)should permanently cease when the person is no longer in receipt of rents and profits; or

(2)should revive if the person starts to receive them once more?24

12.26Are there any other aspects of section 70(1)(g) that operate unsatisfactorily and which you would wish to be reviewed?

Interests excluded from the effect of registration: Land Registration Act 1925, s 70(1)(h)

12.27Do you agree with our provisional recommendation that the estates, rights, interests, and powers excepted from the effect of registration in cases of titles less than absolute should cease to be overriding interests?25

Local land charges: Land Registration Act 1925, s 70(1)(i)

12.28Do you agree with our provisional recommendation that paragraph (i) should be recast in the following way—

(1)local land charges should take effect as overriding interests, whether or not they are registered under the Local Land Charges Act 1975; but

(2)a local land charge that is also a charge over registered land to secure the payment of any sum of money should not be capable of being enforced until it is registered as a registered charge on the Land Register?26

Manorial rights and franchises: Land Registration Act 1925, s 70(1)(j)

23See above, para 5.75.

24See above, para 5.76.

25See above, para 5.79.

26See above, para 5.83.

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