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(2)On receipt of that application, the Registry would be required to serve a notice on the registered proprietor, any proprietor of a registered charge affecting the title in question, and any person who, from any entry on the register, appears to have a right to possession of the land, informing each of them of the application for registration.

(3)If the registered proprietor, chargee or person entitled to possession failed to object within two months of service of the notice, the registrar would register the adverse possessor as registered proprietor and would close the title of the existing proprietor.

(4)If the registered proprietor or chargee objected to the registration, the application would be dismissed unless the adverse possessor could show that—

(a)the proprietor was estopped by his or her conduct from objecting to his or her registration;

(b)he or she had some independent right to the land that entitled him or her to be registered as proprietor; or

(c)he or she had entered into adverse possession under a mistaken belief, reasonably held, as to his or her rights.

(5)If the adverse possessor raised any of these matters, the issue would be resolved by the registrar, unless he referred it to the court at any time prior to his making a final adjudication. There would be a right of appeal from his decision.

(6)If the adverse possessor established that he or she had entered under a mistaken belief as to his or her rights (above, (4)(c)), the court or registrar would order that the adverse possessor be registered as proprietor of the land unless in the circumstances it was inequitable or otherwise inappropriate to do so. Where the court or registrar ordered such registration, it would be on such terms, if any, whether as to payment or otherwise, as were equitable between the parties having regard to all the circumstances. In particular, the squatter could be required to grant the former registered proprietor an easement over his or her land, or to enter into a positive or restrictive covenant for his or her benefit.

(7)Where the adverse possessor’s application to be registered was rejected and he or she subsequently remained in adverse possession for two years from the date of that rejection, he or she could re-apply to be registered as proprietor of the land.

(8)On such re-application, the registrar would, on being satisfied of the facts set out in (7), register the adverse possessor as proprietor of the land and close the title of the registered proprietor. The registered proprietor would remain as such unless and until such an application were made. He or she could therefore deal with the land, but subject to any overriding interest (if any) as the adverse possessor might have, and subject to that person’s rights to bring a claim in damages for trespass.

12.70Secondly, corresponding provision should be made for the situation where a registered

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proprietor sought possession in legal proceedings against the adverse possessor.

(1)Where a registered proprietor brought proceedings for possession against a person who had been in adverse possession of the proprietor’s land for more than 10 years, the proprietor would be entitled to recover the land unless the adverse possessor could show that—

(a)the proprietor was estopped by his or her conduct from objecting to his or her registration;

(b)he or she had some independent right to the land that entitled him or her to be registered as proprietor; or

(c)he or she had entered into adverse possession under a mistaken belief, reasonably held, as to his or her rights.

(2)If the adverse possessor established (a) or (b), the court would order that the claim for possession should be dismissed and that he or she should be registered as proprietor of the land. If (c) were established, the court would dismiss the claim unless circumstances made it inequitable or otherwise inappropriate to do so, and would order that the adverse possessor be registered as proprietor. Such an order would be on such terms, if any, whether as to payment or otherwise, as were equitable between the parties having regard to all the circumstances, as explained above, at paragraph 12.69(7).

(3)Where the registered proprietor failed either to enforce the judgment or to commence new proceedings for possession within two years of its being given, he or she would thereafter be unable to recover the land from the adverse possessor, who would be entitled to be registered as proprietor of the land. Unless and until that happened, the registered proprietor would remain as such, and could deal with the land, but subject both to any overriding interest (if any) as the adverse possessor might have, and to that person’s rights to bring a claim in damages for trespass.

12.71The scheme which we propose above would not apply—

(1)in a case of adverse possession against a short lease which was an overriding interest (which would be subject to the same principles as if it were unregistered land); or

(2)to an adverse possessor who could show that he or she had barred the rights of a registered proprietor before any legislation implementing that scheme was brought into force.

12.72We seek your views on this scheme, and in particular whether—

(1)you agree with it in principle, or would prefer to retain the existing law on adverse possession even though it is founded on principles that were devised for a possession-based, rather than a registration-based system of title; and

(2)if you agree with it in principle, whether you have comments on all or any

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details of the scheme.72

The machinery for giving effect to adverse possession where title is registered

12.73Do you agree with our provisional recommendation that—

(1)the trust should no longer be used as a means of giving effect to the rights of an adverse possessor who has barred the estate of the registered proprietor;

(2)where an adverse possessor is entitled to be registered as proprietor, he or she should be registered with an absolute, possessory or qualified title;

(3)where the title barred is that of a tenant under a lease or a life tenant under a settlement or trust of land—

(a)the adverse possessor should normally be registered with a qualified freehold title;

(b)the qualification should be that he or she takes subject to the estate or interest of any person or persons entitled on the termination of the lease or the life interest; and

(4)where the title barred is that of a tenant under a lease, the freehold (or other) title of any person entitled to the reversion on that or any superior lease should not be closed or otherwise affected by the registration of the adverse possessor with a freehold title?

We would emphasise that our proposals in relation to the machinery are free-standing and do not depend upon the introduction of a new system of adverse possession of the kind proposed in paragraphs 12.68 to 12.71.73

72

73

See above, paras 10.65 - 10.69.

See above, para 10.78.

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Prescription

12.74In anticipation of the introduction of electronic conveyancing, we consider that it is necessary to make some changes to the law governing prescription of easements and profits à prendre over registered land. Do you agree with our provisional recommendation that—

(1)after the coming into force of any legislation, it should not be possible to claim an easement or profit à prendre by prescription except under the provisions of the Prescription Act 1832;

(2)without prejudice to such a claim, it would cease to be possible to assert or claim an easement or profit à prendre on the basis of common law prescription or lost modern grant; but

(3)these proposals would be without prejudice to any easement or profit à prendre that could be shown by the claimant to have been acquired by common law prescription or lost modern grant prior to the coming into force of the legislation?74

CONVEYANCING ISSUES

The creation and transfer of estates, rights and interests in or over registered land

The move to electronic conveyancing

12.75HM Land Registry intends to move to a system of electronic conveyancing over the coming decade or so. In Part XI of this Report, we have tentatively set out how such a scheme might operate. What is required at present is the legal framework that will enable electronic conveyancing to be introduced in an orderly manner.

12.76Do you agree with our provisional recommendation that—

(1)the Lord Chancellor should have power to make rules from time to time to enable title to registered land to be transferred and rights over registered land to be created without a written instrument; and

(2)any such rules should be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament?75

Formal requirements

12.77To facilitate the introduction of paperless conveyancing, it will be necessary to disapply the existing formal requirements for the transfer and creation of estates, rights and interests in land. There are many provisions in the property legislation which apply only to transactions made by deed. These will also have to be amended to enable electronic conveyancing to be introduced. Even in advance of the introduction of paperless conveyancing, it is likely to be desirable to move towards the conduct of conveyancing according to standardised formats and computer generated documents.

74

75

See above, para 10.94.

See above, para 11.20.

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12.78In the light of this, do you agree with our provisional recommendation that—

(1)the Lord Chancellor should have power to make rules to modify or exclude any provision of any enactment or instrument, or any rule of law, to the extent that is necessary to facilitate conveyancing transactions in regard to land with registered title; and

(2)the power should be exercisable by statutory instrument subject to annulment by resolution of either House of Parliament?76

Transitional provisions

12.79Do you agree with our provisional recommendation that—

(1)the existing power by which interests in registered land may be created or transferred “off the register” and then take effect as minor interests should be retained; but

(2)under the provisional recommendation in paragraph 12.76 above, the Lord Chancellor should have power to override (1) and to specify that certain transactions could be effected only by registration?77

A specific problem: the assignment of leases

12.80We explain above the problems that have been created by the decision of the Court of Appeal in Brown & Root Technology Ltd v Sun Alliance & London Assurance Co Ltd.78

We seek your views as to which one or more of the following options you would prefer as a response to that decision—

(1)leave the law unchanged, so that where a registered lease is assigned, it should operate merely as an equitable assignment of the lease pending its registration;

(2)provide that on an assignment of a registered lease, as between the persons whose rights and liabilities are affected by that assignment, it should take effect as if it were a legal assignment even though it has not been registered (thereby replicating the position where title to a lease is unregistered);

(3)provide that where a transfer of any registered estate is not completed by registration within (say) two months, the Registry should charge an additional fee for its registration; or

(4)some other option (please specify).

76

77

78

See above, para 11.23.

See above, para 11.25.

(1996) 75 P & CR 223. See paras 11.26 and following.

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

Proof of title

12.81We examine the operation of section 110 of the Land Registration Act 1925.79 Do you agree with our provisional recommendation that—

(1)subject to (2) and (3) below, on a disposition of registered land (including a subsale), there should be no restrictions on the rights of the parties to make their own arrangements as to—

(a)the evidence of title that the proprietor or seller should be required to deduce; or

(b)the steps that the seller who is not the registered proprietor should be required to take to perfect his or her title; but

(2)the Lord Chancellor should have power to make rules specifying—

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

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

(3)any rules made under (2) would override the terms of any agreement that might have been made by the parties?80

Converting good leasehold title to absolute title

12.82We are aware that a person registered with good leasehold title sometimes needs to upgrade his or her title to absolute in order to sell or mortgage the lease. This requires those with superior titles to deduce them to the Registry. Sometimes it may be difficult to secure their co-operation. Although this may be a problem in some cases, our provisional view is that any effective solution would be excessively draconian. Do you agree with our provisional conclusion that there should be no statutory right for a tenant who is registered with a good leasehold title to compel the deduction of superior reversionary titles, so that he or she can be registered with an absolute title, or do you consider that this is a sufficiently serious problem in practice that some kind of right should be given?81

Other conveyancing issues

12.83Are there any other conveyancing issues affecting registered land where you consider that reform would be desirable? If so, what are they?82

79See above, paras 11.35 and following.

80See above, para 11.48.

81See above, para 11.50.

82See above, para 11.51.

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APPENDIX

A list of persons who responded to a consultation carried out by the Law Commission regarding potentially obsolete overriding interests within the Land Registration Act 1925, s70(1)

Association of County Councils

Association of Drainage Authorities

Association of London Authorities

Association of London Government

Association of Metropolitan Authorities

British Aggregate Construction Materials Industries

British Ball Clay Products Federation Ltd

The Confederation of British Industry

China Clay Association

The Church Commissioners

Cornish Chamber of Mines

Country Landowners Association

The Crown Estate

Duchy of Cornwall

Duchy of Lancaster

A Duncan Esq, Grimley JR Eve, International Property Consultants

Durrad Davies & Co, Solicitors

Farrer & Co, Solicitors to the Duchy of Cornwall

Forestry Commission

Fowler, Langley & Wright, Solicitors

Aden, Stretton, Slater, Miller, Solcitors

I Hoddy Esq, RMC Group Services Ltd

N K Jeans Esq, Tregothan, Truro

Manby & Steward, Solicitors

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Matthews & Son

Mining & Mineral Law Group

Ministry of Agriculture, Fisheries and Food (Legal Department and Flood and Coastal Defence Division)

P Morgan Esq, Wardell Armstrong, Mining, Minerals, Engineering and Environmental

Consultants

National Rivers Authority

Pickering & Butters, Solicitors

The Royal Institute of Chartered Surveyors

Rutherfords, Solicitors

Sand and Gravel Association

Silica and Moulding Sands Association

Smith Whittingham, Solicitors

Stephenson Harwood, Solicitors

Talbot & Co, Estate Agents

The Mining Association of the United Kingdom

United Kingdom Onshore Operators Group

I C Waite Esq, Stephens & Scown, Solicitors

Ward Williams, Chartered Surveyors, Land Agents & Valuers

Wilsons, Solicitors

WE ARE ALSO GRATEFUL TO THE FOLLOWING WHO ASSISTED US IN OUR

INQUIRIES ON THE EXTENT OF CORN RENTS:

Dr J A Farrer

N R B Robinson Esq, Agent and Receiver, The Shrewsbury Hospital Estate Office

Smiths Gore, Chartered Surveyors

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