Экзамен зачет учебный год 2023 / ELC, Land Registration II

12.29Do you agree with our provisional recommendation that—

(1)any subsisting manorial rights; and

(2)franchises;

which have not been noted on the register of the title which they affect should remain as overriding interests?27

Leases not exceeding 21 years: Land Registration Act 1925, s 70(1)(k)

12.30Do you agree with our provisional recommendation that—

(1)subject to the exceptions in the right to buy legislation contained in Part V of the Housing Act 1985 (as amended), a lease granted for a term not exceeding 21 years (or such lesser period as may be favoured on consultation)28 and taking effect in possession or within three months of the grant should be an overriding interest; but

(2)this would be subject to an exception in favour of a discontinuous term of years, such as a time-share arrangement, which would require substantive registration?29

Certain mineral rights where title was registered prior to 1926: Land

Registration Act 1925, s 70(1)(l)

12.31Do you agree with our provisional recommendation that certain mineral rights in land that were registered prior to 1926 should remain overriding interests?30

Rights to coal: Land Registration Act 1925, s 70(1)(m)

12.32Do you agree with our provisional recommendation that any interest in land consisting in an interest in any coal or coal mine and the other ancillary rights listed in the Coal Industry Act 1994, Schedule 9, para 1(1) should continue to be overriding interests.31

Noting overriding interests on the register: Land Registration Act 1925, s 70(2) and (3)

12.33Do you agree with the following scheme which we provisionally propose—

(1)the registrar would have a discretion to note on the register any overriding interest except short leases (within what is presently section 70(1)(k)) and rights to coal (within what is presently section 70(1)(m));32

27See above, paras 5.85, 5.86.

28See above, para 12.2.

29See above, para 5.94.

30See above, para 5.96.

31See above, para 5.98.

32By making the decision to note on the register discretionary, there would be no need to have express exceptions for trivial and obvious rights.

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(2)this discretion would be exercisable both on first registration and at any time subsequently;

(3)the mechanism for protecting such rights by notice would be the same as it would on an application to register such a right; and

(4)the registrar would no longer be under a duty to note on the register certain specific overriding interests, but his decision either to note on the register or not would be subject to appeal to the court by any person interested in the land?33

12.34Do you think that there should be an obligation on any person who is applying for the registration of a disposition of land, whether or not that land is already registered, to disclose to the registrar any overriding interests that he or she has discovered? Any such application would only be required if the applicant’s solicitor or licensed conveyancer was reasonably satisfied that the right existed.34

General defences of fraud and estoppel

Defences to the assertion of all overriding interests

12.35Do you agree with our provisional recommendation that all overriding interests should be subject to the application of any rule of law relating to fraud or estoppel?35

Waivers of priority

12.36Do you agree with our provisional recommendation that it should not be possible to make any entry on the register in respect of a waiver of priority by a person having the benefit of an overriding interest?36

The “registration gap”

12.37Do you agree with our provisional recommendation that the rule laid down by the House of Lords in Abbey National Building Society v Cann37 as to the date upon which overriding interests must exist should be codified so that—

(1)overriding interests that were in existence at the date of registration would bind any transferee; and

(2)where the overriding interest claimed was the right of an occupier, that person would have to have been in occupation at the date of the execution of the transfer or disposition of the registered land?38

THE PROTECTION OF MINOR INTERESTS AND RESTRICTIONS ON DEALINGS WITH

REGISTERED LAND

33See above, para 5.103.

34See above, para 5.107.

35See above, para 5.108.

36See above, para 5.111.

37[1991] 1 AC 56.

38See above, para 5.113.

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Notices and cautions

12.38Do you wish to see—

(1)the retention without any change of the present dual system under which there are two ways of protecting rights over property by notice or caution;

(2)a reformed system in which the distinction between notices and cautions would be retained, but where the lodging of a caution would be a form of proprietary protection that conferred priority on the right in question, and where other defects in the present system would be eliminated; or

(3)a new system for the protection of minor interests (other than interests under trusts of land) which would combine in one form of protection the best features of notices and cautions in the manner outlined in the following paragraph; or

(4)some other model and if so what?

Our preferred option is (3).39

12.39The alternative scheme that we propose in paragraph 12.38(3) would have the following characteristics—

(1)Protection of the right or interest on the register would preserve its priority, in the same way as the entry of a notice does at present.

(2)It would be available for the protection of all minor interests except interests under a trust of land which would have to be protected by the entry of a restriction.

(3)It would be possible to make an entry either—

(a)with the consent of the registered proprietor or pursuant to an order of the court or registrar (“consensual notices”); or

(b)unilaterally (“unilateral notices”).

(4)It would be stated on the register whether the notice was consensual or unilateral. It would not be possible to warn off a consensual notice. It would be possible to warn off a unilateral entry.

(5)Where a unilateral notice was entered, the registered proprietor would then be informed, and could challenge it at any time thereafter.

(6)Where there was an application to enter a consensual notice, the facts or documents upon which the claim to register was based would have to be set out or produced on application. This is because, once entered, the right would be permanently on the register, and it would not be possible to warn off the right.

39 See above, para 6.54.

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(7)Where there was an application to enter a unilateral notice, it would be incumbent on the applicant for registration to show that the right claimed was capable of being a minor interest, but there would be no further investigation of the truth or the legal merits of the claim. This is because the protection afforded by registration is not permanent: the entry may be warned off.

(8)There would be a liability to pay damages and costs for lodging a unilateral notice without reasonable cause.

Restrictions and inhibitions

12.40Do you agree with our provisional recommendation that—

(1)the registrar should be able to enter a restriction to restrict the powers of disposition of a registered proprietor, in whole or in part, whether or not subject to conditions or the obtaining of some consent;

(2)the entry of such a restriction should confer no priority on, nor preserve any existing priority of, a right or interest in property, where it was entered to protect that right or interest; and

(3)inhibitions should be abolished?40

12.41Do you agree with our provisional recommendation that—

(1)the registrar should continue to have the power and in some cases the duty to enter a restriction on the same basis as at present;

(2)the following should be entitled to apply for a restriction—

(a)the registered proprietor;

(b)any person who had the written consent of the registered proprietor;

(c)any person applying pursuant to an order of the court or registrar; or

(d)any person who could demonstrate that he or she had the benefit of a right or interest that should be protected by a restriction (such as an interest under a trust of land or the rights of a trustee in bankruptcy);

(3)if the applicant fell within (2)(d), no restriction would be entered before a notice had been served on the registered proprietor, giving him or her the opportunity to object to the entry and—

(a)the period for objection had expired;

(b)the proprietor had consented; or

40 See above, para 6.57.

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(c)any objection by the proprietor had been resolved?41

12.42Do you consider that the court should have power, when ordering that a restriction be placed on the register, to designate it as having absolute priority? If you do, do you think that a restriction so designated should take precedence over the protection given to an intending purchaser by an official search, so that no disposition of the land should then take place until the court or the registrar should so direct?42

Cautions against first registration

12.43Do you agree with our provisional recommendation that—

(1)any person having an interest in the unregistered land in question should be entitled to register a caution against first registration;

(2)a caution against first registration should not preserve the priority of the applicant’s interest;

(3)the landowner (or any other person having a legal estate in, or legal charge over, the land) should be entitled to challenge the registration of a caution at any time unless he or she had consented to it; but

(4)in all other respects, a caution against first registration should operate in the same manner as it does under the present law?43

Making entries without reasonable cause

12.44Do you agree with our provisional recommendation that—

(1)where any person suffered loss in consequence of the entry without reasonable cause of a caution (if after consultation these are retained),44 a caution against first registration, a notice or a restriction, the court should have power to award compensation against the person making the entry; and

(2)for the purposes of assessing compensation and limitation, such a claim to compensation would be treated as an action in tort?45

12.45Do you agree with our provisional recommendation that the power to award compensation set out in the previous paragraph, should also apply where loss is caused because a person resists the removal of an entry on the register without reasonable cause?46

Power to remove entries

41See above, para 6.59.

42See above, para 6.61.

43See above, para 6.64.

44See above, para 12.38.

45See above, para 6.66.

46See above, para 6.67.

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12.46Do you agree with our provisional recommendation that there should be a power to discharge or vary a caution, notice or restriction and that it should be exercisable either by the court on motion or by the registrar?47

Transitional arrangements

12.47Do you agree with our provisional recommendation that any changes proposed in relation to the protection of minor interests should have prospective effect only?48

PRIORITIES

Priority of minor interests

12.48Would you—

(1)favour the introduction of a first in time of registration system for the priority of minor interests of the kind proposed in the Law Commission’s Third Report on Land Registration;49 or

(2)prefer to leave the present law unchanged and await the introduction of a system of electronic conveyancing (explained in Part XI of this Report), under which it is envisaged that most rights in or over registered land could only be created expressly by entering them on the register, so that a “first in time of registration” system would in fact be introduced?

Our preference is strongly in favour of (2). However, if you favour (1), would you please indicate why you prefer this method and how you consider it might be integrated with the present law.50

12.49Do you agree with our provisional recommendation that the principles which determine the priority of minor interests should be stated in statutory form (but without codifying them), provided that it is possible to identify them with sufficient clarity?51

Priority of overriding interests

12.50Do you agree with our provisional recommendation that the priority of overriding interests should be as follows—

(1)the grant of a lease for a term of 21 years (or such lesser period as may be agreed on consultation) should continue to have the same priority as if it were a registered disposition;

(2)any other overriding interest should, on creation, continue to take effect subject to prior overriding interests and minor interests (whether or not such interests are protected on the register); and

47See above, para 6.68.

48See above, para 6.69.

49Explained above at paras 7.24 - 7.26.

50See above, para 7.32.

51See above, para 7.34.

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(3)dealings with an overriding interest should continue to be governed by the rules of unregistered conveyancing?52

Other issues

12.51Do you agree with our provisional recommendation that where there is a disposition of a registered estate or registered charge, the transferee or grantee shall take the land subject to minor interests to which he or she is a party?53

12.52Are there any other aspects of the law governing the priority of interests which you have identified as unsatisfactory and where you consider reform to be necessary?54

RECTIFICATION OF THE REGISTER

Grounds for rectification

12.53Do you agree with our provisional recommendation that, subject to the qualifications that we explain in paragraphs 12.57 - 12.59 below, the court and the registrar should have a power to rectify the register whenever there has been an error or omission in it?55

12.54Do you agree with our provisional recommendation that—

(1)the power for the registrar to correct clerical errors in the register or any plan or document to which it refers, where there is no detriment to any registered interest, should be made statutory; and

(2)such a correction should not be regarded as “rectification” for the purposes of the legislation?56

12.55Do you agree with our provisional recommendation that where, notwithstanding an error or mistake in the register, the register is not rectified—

(1)the court or registrar should have power to make any correlative amendment to any other registered title that is necessitated by that non-rectification, even though there was no mistake in that other title; and

(2)any such amendment shall constitute “rectification” for the purposes of the legislation, so that a claim for indemnity will lie if the registered proprietor suffers loss in consequence?57

12.56Do you agree with our provisional recommendation that an amendment of the register to give effect to any estate, right, interest or power which is excepted from the effect of registration should not be regarded as “rectification” for the purposes of the

52See above, para 7.35.

53See above, para 7.36. The effect of this recommendation is to reverse one point in Orakpo v Manson Investments Ltd [1977] 1 WLR 347 (CA).

54See above, para 7.39.

55See above, para 8.42.

56See above, para 8.43.

57See above, para 8.45.

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legislation?58

Rectification against a proprietor who is in possession

Qualified indefeasibility

12.57Do you agree with our provisional view that some form of qualified indefeasibility should be retained? If you do not, would you please give your reasons.59

12.58If you agree with our provisional view in paragraph 12.57 above, do you prefer Option 1 (qualified indefeasibility in all cases of lawful possession)60 or Option 2 (qualified indefeasibility in some cases of lawful possession)?61 If you favour Option 2, which of the following categories of persons in lawful possession of registered land should be protected—

(1)the registered proprietor;

(2)any tenant for a term of years;

(3)any tenant at will;

(4)any licensee (whether gratuitous or for value, and including any agent or employee);

(5)any beneficiary under a trust of land or settlement; or

(6)any mortgagee who had exercised his or her right to take possession?62

Exceptions to indefeasibility

12.59Do you agree with our provisional recommendation that where the principle of qualified indefeasibility applied, it should remain the case that the register might be rectified against a proprietor who is in possession (however defined)—

(1)to give effect to an overriding interest;

(2)where that proprietor has caused or substantially contributed to the error or omission by fraud or lack of proper care; or

(3)where it is considered that it would be unjust not to rectify the register against him or her?

Do you agree that, where one of these grounds existed, there would be a presumption in favour of rectification, but the matter would still be discretionary?63

58See above, para 8.46.

59See above, para 8.47.

60See above, para 8.49.

61See above, para 8.50.

62See above, para 8.51.

63See above, para 8.52.

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Rectification against a proprietor who is not in possession

12.60Do you agree with our provisional recommendation that, where the proprietor is not in possession (however that may be defined), there should be a presumption in favour of rectification where a ground for rectification exists, though it would still be a matter of discretion whether or not the court or registrar ordered rectification?64

Rectification and derivative interests

12.61Do you agree with our provisional recommendation that—

(1)the register might be rectified even though this might affect any estates, rights, charges, or interests acquired or protected by registration, or by an entry on the register, or any overriding interest; and

(2)any rectification of the register should be effective from the date of the application for rectification, and should not have retrospective effect?65

MORTGAGES AND CHARGES

Registered charges

Definition of “registered charge”

12.62Do you agree with our provisional recommendation that the definition of “registered charge” should make it clear that—

(1)it is a legal mortgage of, or charge over, registered land to secure either—

(a)the payment of money that is or may become payable; or

(b)the performance of some other obligation; and

(2)it includes any statutory charge;

which is created and registered as a charge in accordance with the provisions of the Act?66

Registered charges as charges by way of legal mortgage

12.63Do you agree with our provisional recommendation that a registered charge should always take effect as a charge by way of legal mortgage and that it should no longer be possible to create a mortgage of registered land by demise or subdemise?67

The powers of registered chargees

12.64Do you agree with our provisional recommendation that the powers conferred on mortgagees by the Law of Property Act 1925 to sell or to appoint a receiver should be exercisable by the proprietor of a registered charge, whether or not the charge was

64See above, para 8.53.

65See above, para 8.55.

66See above, para 9.3.

67See above, para 9.5.

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created by deed?68

Equitable mortgages and charges

Liens arising from a deposit of the land certificate

12.65Do you agree with our provisional recommendation that the statutory power to create a lien over registered land by depositing the land certificate, which has in practice been obsolete since April 1995,69 should be abolished?70

ADVERSE POSSESSION AND PRESCRIPTION

Adverse possession

The fundamental issue of principle

12.66Do you agree with our provisional recommendation that—

(1)the law of adverse possession as it applies to registered land should be recast to reflect the principles of title registration; and

(2)its application should be restricted to those cases where it is essential to ensure the marketability of land or to prevent unfairness?

If you disagree, please tell us your reasons for doing so.71

The proposed scheme of adverse possession for registered land

12.67We ask for your views on the scheme that we set out in the following paragraphs.

12.68We provisionally recommend that—

(1)adverse possession should no longer of itself bar the title of a registered proprietor;

(2)only the closure of that proprietor’s title on the register would have that effect, and it would do so for all purposes; and

(3)the principles of adverse possession applicable to registered land should be as set out in the following paragraphs.

12.69First, there should be a new system to enable an adverse possessor to seek registration as proprietor, and it should operate as follows—

(1)Where a person had been in adverse possession of land with a registered title for more than 10 years, he or she would be entitled to apply to be registered as proprietor of that land.

68See above, para 9.7.

69See above, para 9.8.

70See above, para 9.11. We draw particular attention to the reasons given in that paragraph for such abolition.

71See above, para 10.19.

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