Экзамен зачет учебный год 2023 / ELC, Land Registration

provisions). Thirdly, failure to register carries with it the risk that the right might be lost. This would occur if the land affected by it was sold to a purchaser, who would necessarily take free of it as an unprotected minor interest. ...this might be regarded as tantamount to expropriation. Finally, experience of the workings of the one modern statute that has required the registration of existing property rights on a large scale ¾ registration of rights of common under the Commons Registration Act 1965 ¾ strongly suggests that it is an experiment not to be repeated.281

8.82Secondly, the removal of overriding status without compensation carried with it some risk of contravening Article 1 of the First Protocol of the European Convention on Human Rights.282 That Article provides¾

1.Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

2.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

8.83As we explained in the Consultative Document¾

Article 1 has been held by the European Court of Human Rights in Sporrong and Lönnroth v Sweden283 to comprise three distinct rules. The first “enounces the principle of peaceful enjoyment of property”. The second “covers deprivation of possessions and subjects it to certain conditions”. The third “recognises that States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose”.

The jurisprudence of the Court of Human Rights establishes that deprivation in the public interest without compensation “is treated as justifiable only in exceptional circumstances”284 because it fails to meet the requirements of proportionality between the means employed and the aims that are sought to be realised. By contrast, in cases where the issue is one of control, “a right to compensation is not inherent”,285 though in some cases the necessary

281Law Com No 254, para 4.26.

282Law Com No 254, para 4.30.

283(1982) 5 EHRR 35, 50, para 61. This analysis has been applied by the Court in all subsequent cases.

284James v United Kingdom (1986) 8 EHRR 123, 147, para 54.

285Banér v Sweden No 11763/85, 60 DR 128, 142 (1989) (a decision of the European Commission of Human Rights, not the Court).

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requirement of proportionality will not be met in the absence of such compensation.286

8.84The cautious approach that we adopted in the Consultative Document towards the immediate abolition of the overriding status of certain rights was prompted by our uncertainty as to whether this would constitute a deprivation of rights of possession within Article 1 of the First Protocol or merely a control of them.287

The views expressed on consultation

8.85It was clear from many of those who responded to the Consultative Document that they wished to see the abolition of a number of categories of overriding interests, given their troublesome nature. There was a strong feeling that, if it was not possible to do so immediately, we should at the very least consider the phasing out of these overriding interests over a period of years in the alternative. The reduction in the number of overriding interests would be a significant step towards a conveyancing environment in which title can be investigated on line with the minimum of additional inquiries.288 We have therefore reconsidered the matter, having particular regard to the concerns listed above in paragraph 8.81 and the need to comply with the European Convention on Human Rights. In the light of this, the Bill makes provision to phase out five categories of overriding interests, in relation both to first registration and registered dispositions.289

The scheme adopted in the Bill

8.86The essential features of this scheme are¾

(1)the rights involved will remain overriding for 10 years;290

(2)those who have the benefit of such rights over unregistered land, which would, therefore, be overriding on first registration, will be able to lodge a caution against first registration without payment of any fee during that 10 year period;291 and

(3)those who have the benefit of such rights over registered land, which would,

therefore, be overriding on any registered disposition, will be able to

286Cf Chassagnou v France, Nos 25088/94; 28331/95; 28443/95; 29 April 1999, especially at paras 80¾85.

287Cf Law Com No 254, para 4.30.

288See above, para 8.1.

289Cl 115. For the categories of overriding interests that are to be phased out, see below, para 8.88.

290Cl 115(1).

291Cl 115(2)(a).

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register a notice in respect of such a right without payment of any fee during the 10 year period.292

8.87We have given careful thought to the categories of overriding interests that should be phased out. In particular, we have had regard to our guiding principle that interests should only have overriding status where protection against buyers is needed, but where it is neither reasonable to expect nor sensible to require any entry on the register.293

8.88We have identified four classes of overriding interests. We consider that the phasing out of overriding status is justified in relation to the fourth of these but not in relation to the first three. Our conclusions can be summarised as follows.

(1)There are good reasons why some interests are overriding and where it is either not feasible or indeed positively undesirable to remove their overriding status. We include in this category¾

(a)PPP leases;294

(b)local land charges;295 and

(c)mines and minerals.296

(2)There are other overriding interests the scope of which is significantly reduced by the Bill, either with immediate effect or over a period of time. In relation to these, overriding status is justifiable in its restricted form. We include in this category¾

(a)short leases;297

(b)the interests of persons in actual occupation;298 and

(c)legal easements and profits.299

(3)There are two categories of overriding interests which it might be desirable to eliminate but where, in practice, there is a significant risk that nobody would see fit to register them within any period of grace. These are¾

292Cl 115(2)(b).

293See above, para 8.6.

294See above, para 8.11.

295See above, para 8.29.

296See above, para 8.31.

297See above, paras 8.9, 8.50.

298See above, paras 8.14, 8.54.

299See above, paras 8.23, 8.65.

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(a)customary rights;300

(b)public rights.301

(4)There are five miscellaneous overriding interests, whose shared characteristics have been described above at paragraph 8.35. All are relics from past times and are of an unusual character. Most of them can no longer be created. Those who have the benefit of such rights ought to be aware of them. These characteristics make them obvious and sensible candidates to be phased out. If such rights are to bind those who acquire registered land, they should be protected on the register. The rights in question are¾

(a)a franchise;302

(b)a manorial right;303

(c)a crown rent;304

(d)a non-statutory right in respect of an embankment or a river or sea wall;305 and

(e)a corn rent.306

Under the Bill, these five rights will cease to be overriding interests both in relation to first registration and on a registered disposition 10 years after the Bill is brought into force.307

Human rights

8.89We are satisfied that our proposals will comply with the requirements of Article 1 of the First Protocol of the European Convention on Human Rights.308 First, there can be little doubt that the phasing out of overriding status over a period of 10 years with a view to encouraging the registration of such rights instead constitutes a “control” and not a “deprivation” of property rights. The removal of overriding status has no effect per se on the rights themselves. Secondly, a requirement for securing the registration of such rights of an unusual character

300See above, para 8.26.

301See above, para 8.26.

302See above, para 8.40.

303See above, para 8.40.

304See above, para 8.43.

305See above, para 8.45.

306See above, para 8.46.

307Cl 115(1).

308See above, para 8.82.

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is obviously a legitimate aim for a state to pursue and is “in accordance with the general interest” as that Article requires. Indeed, the Court of Human Rights has recently reiterated the need for rules of domestic law to be “sufficiently accessible, precise and foreseeable” in the context of the protection of possessions.309 Thirdly, what is proposed is undoubtedly proportionate in terms of the end desired and the means to achieve it. The period of 10 years is generous. It gives more than adequate time both to publicise the need to register such rights and for those who have the benefit of them to ensure that they are registered. Furthermore, no fee is to be charged for the entry of such rights on either the register or the cautions register.

Ensuring that overriding interests are protected on the register when they come to light

8.90The Bill contains three provisions that are intended to ensure that, when overriding interests come to light, they are protected on the register.

8.91First, by Clause 71, there is a power to make provision by rules requiring a person who applies¾

(1)for first registration310 to provide to the registrar in specified circumstances specified information about overriding interests affecting the estate that fall within Schedule 1 and are of a kind specified in rules;311 and

(2)to register a registrable disposition312 to provide to the registrar in specified circumstances specified information about overriding interests affecting the estate that fall within Schedule 3 and are of a kind specified in rules.313

The purpose of these provisions is similar. In relation to both, the objective is to ensure that the applicant for registration discloses any overriding interests so that they can be entered on the register.314 This is intended to ensure that such rights are, in consequence, registered. There will be cases where an applicant is aware of what might or might not be an overriding interest. The registrar will only wish to enter on the register such rights as are clear and undisputed.315 The rules will therefore provide guidance as to when the buyer has to provide information and in relation to which overriding interests it is required. There will be no direct sanction for this obligation, at least when the Bill is first introduced. However,

309See Belvedere Alberghiera SRL v Italy No 31524/96; 30 May 2000, para 57; Carbonara and Ventura v Italy No 24638/94; 30 May 2000, para 64.

310Under Chapter 1 of Part 1 of the Bill.

311Cl 71(a).

312Under Cl 27.

313Cl 71(b).

314Unless the overriding interest is one that cannot be noted on the register. For these, see below, para 8.93.

315See Law Com No 254, para 5.106.

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when electronic conveyancing becomes operative, those solicitors and licensed conveyancers who enter into network access agreements with the registrar are likely to be required to ensure compliance with this obligation under the network transaction rules.316

8.92Clause 71 implements a recommendation that was made in the Consultative Document.317 It was supported by three-fifths of those who responded to it. It was clear that those who were opposed to it feared that it would impose a much higher burden on solicitors and licensed conveyancers than will in fact be the case. As we have indicated, that will not be so and rules will provide guidance as to when disclosure must be made to the registrar.

8.93Secondly, by Clause 37, if it appears to the registrar that a registered estate is subject to an overriding interest that falls within Schedule 1, he may enter a notice in the register in respect of it, unless it is one of the following¾

(1)a lease that is granted for a term of 3 years or less from the date of the grant and is not required to be registered;318

(2)a PPP lease;319 or

(3)any interest in any coal or coal mine and certain other rights in relation to coal.320

8.94There are good reasons why these three categories of overriding interest cannot be noted on the register and the exceptions reflect the present law, except that the class of leases in respect of which a notice may not be entered is much narrower than at present for reasons that have been explained in Part VI of this Report.321 Clause 37 replaces section 70(2), (3), (3A) and (4) of the Land Registration Act 1925, but it recasts the law in the manner proposed in the Consultative Document.322

8.95Thirdly, once an overriding interest has been protected by the entry of a notice on the register, it can never again become an overriding interest, even if, say, the notice were removed in error from the register.323 Any such error would be a matter for the payment of indemnity to any person who suffered loss as a result.324

316Cf Schedule 5, para 5(2)(b). See below, para 13.52.

317See Law Com No 254, paras 5.104¾5.107.

318See Cl 33(b).

319See Cl 90(4). For PPP leases, see above, paras 8.11 and following.

320See Cl 33(e). For these rights, see above, para 8.32.

321See paras 6.10¾6.12.

322See Law Com No 254, paras 5.99¾5.103, where the existing provisions are criticised. The proposals were supported by all save one of those who responded to them.

323This is the effect of Cls 29(3) and 30(3).

324See Schedule 8, para 1(1)(b); see below, para 10.32.

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PART IX

THE REGISTER AND REGISTRATION

INTRODUCTION

9.1In this Part we consider a variety of matters that are concerned with the register and registration. These are, mainly but not exclusively, matters that are covered by Part 6 of the Bill and they are necessarily something of a miscellany. The matters covered are as follows¾

(1)the register;

(2)the conclusiveness of registration;

(3)boundaries;

(4)quality of title;

(5)accessing information;

(6)priority protection;

(7)applications; and

(8)land certificates.

9.2The following matters are not considered in this Part¾

(1)the requirements for the registration of a registrable disposition,1 which has already been explained in Part IV;2

(2)the duty to disclose overriding interests,3 which has been explained in Part VIII;4

(3)the alteration of the register,5 which is examined in its own right in Part X, below; and

(4)proceedings before the registrar,6 which are addressed in relation to the judicial provisions of the Bill in Part XVI.7

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THE REGISTER

9.3The Bill provides that the register of title shall continue to be kept.8 There is a power, by rules, to make provision about how the register is to be kept.9 In particular, such rules may make provision about the information that is to be included in the register, the form in which it is to be kept and its arrangement.10 This approach allows for flexibility and means that changes in the way in which the register is kept will not require primary legislation.11

REGISTRATION AS PROPRIETOR

Conclusiveness

9.4One of the most fundamental principles of registered conveyancing is that it is registration that vests the legal estate in the registered proprietor.12 Clause 58(1) of the Bill provides accordingly that if, on the entry of a person in the register as the proprietor of a legal estate,13 the legal estate would not otherwise be vested in him or her, it shall be deemed to be vested in him or her as a result of registration. Thus, for example, if a person is registered as proprietor on the strength of a forged transfer, the legal estate will vest in that transferee even though the transfer was a nullity.

9.5In Part IV of this Report it was explained that the Bill lays down the registration requirements for registrable dispositions in Schedule 2.14 It is therefore necessary for the purposes of the principle set out in paragraph 9.4 for the Bill to make provision for the case where some but not all of those registration requirements are met. It therefore provides that the principle stated in paragraph 9.4 does not apply where¾

(1)there is a registrable disposition; and

(2)an entry is made in the register in respect of that disposition; but

8Cl 1(1). Cf Land Registration Act 1925, s 1(1).

9At present almost all titles on the register are kept in electronic form, though there are still a few that are held in documentary form.

10Cl 1(2). The rules will be land registration rules and will be required to be laid before Parliament only. See Cls 125, 129(1). For the present rules on the manner in which the register is arranged and its content, see Land Registration Rules 1925, Part 1.

11Land Registration Act 1925, s 1 had to be amended by Administration of Justice Act 1982, s 66 to make it clear that the register did not have to be kept in documentary form.

12Cf Land Registration Act 1925, s 69(1).

13“Legal estate” has the meaning given to it by Law of Property Act 1925, s 1(4): see Cl 129(1).

14See para 4.16.

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(3)some further entry is required to meet the registration requirements in Schedule 2.15

But for this exception to the principle in paragraph 9.4, the provisions of Schedule 2 would not be registration requirements at all.

9.6The following events will exemplify how the provision in paragraph 9.5 will operate. X applies to be registered as the grantee of a 99-year lease. The lease is registered with its own title. However, the registrar fails to enter a notice of the lease on the superior freehold title. The legal estate is not vested in X by virtue of Clause 58(1).16

Dependent entries

9.7The Bill explains where entries on the register are to be made in relation to certain dispositions. First, if a legal estate subsists for the benefit of a registered estate, such as an easement or a profit à prendre appurtenant or appendant,17 the entry of a person in the register as proprietor of that legal estate must be made in relation to the registered estate.18 Secondly, where a person is registered as the proprietor of a registered charge, that entry must be made in relation to the registered estate subject to the charge.19 Thirdly, where a person is registered as proprietor of a sub-charge,20 that entry must be made in relation to the registered charge that is subject to the sub-charge.21

Effective date of registration

9.8At present, the Land Registration Rules 1925 provide that registration is taken to be completed as of the day on which the application for first registration or for registration (as the case may be) is deemed under rules to have been delivered to the Registry.22 The Bill makes provision as to the time from which registration has effect. In relation to both an application for first registration and an application to register a registrable disposition, it has effect from the time of the making of the application.23 There are several points that should be noted about this provision. First, the fact that registration will take effect from the time of the making of the application is significant. The Land Registry has recently moved to

15Cl 58(2).

16The grant will, however, be effective in equity.

17For profits appurtenant and appendant, see Megarry & Wade’s Law of Real Property (6th ed 2000), 18-082, 18-083, respectively.

18Cl 59(1).

19Cl 59(2).

20For sub-charges, see above, para 7.11

21Cl 59(3).

22Land Registration Rules 1925, rr 24, 42, 83.

23Cl 74. For the rule-making power to provide when an application is taken to be made, see Schedule 10, para 6(c); below, para 9.77(3).

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a system of real time priority24 under which the priority of an application is determined by the actual time at which it is entered on the day list.25 Secondly, it is intended that, under the system of electronic conveyancing that it is proposed to introduce, the making of a disposition and its registration will in fact occur simultaneously.26 The provision mentioned in this paragraph may therefore become obsolete in the comparatively near future.

BOUNDARIES

The general boundaries rule

9.9In many countries, there is a cadastre,27 which is a record of all land holding. This is commonly kept for fiscal purposes, and under such systems, boundaries are often surveyed and delimited with at least some degree of precision. No doubt because of a different approach to taxes on land ownership, this cadastral system has not been adopted in England and Wales. In general, in this country, the register is not conclusive as to boundaries. This is because of the so-called “general boundaries rule” that is presently contained in rule 278 of the Land Registration Rules 1925. This provides that¾

Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan… shall be deemed to indicate the general boundaries only.28

9.10Although there is a power to fix boundaries,29 it has hitherto hardly ever been used for two main reasons.30 The first is the expense of so doing, which, given the manner in which boundaries have been fixed hitherto, is considerable. The second is that the process of fixing of a boundary is all too likely to create a boundary dispute where none had existed hitherto. This is because it is necessary to investigate the titles of all adjoining landowners.31

9.11The general boundaries rule is to be retained under the Bill. However, as we explain below, it is anticipated that fixed boundaries are likely to become more

24As from 28 May 2001.

25See Land Registration Rules 1925, rr 24(2), 85(1). The day list is a record of pending applications for first registration and for making, rectifying or cancelling an entry on the register: ibid, r 7A.

26This is explained fully below, see paras 13.74 and following.

27Or whatever the local variant of that word may be.

28Land Registration Rules 1925, r 278(1).

29See Land Registration Rules 1925, r 278(2). Once so fixed, the boundary is guaranteed by the Registry.

30See Ruoff & Roper, Registered Conveyancing, 4-22.

31Ibid. In the Land Registry’s Practice Leaflet No 16: Boundaries in Land Registration, para 1.2, it is stated that “in view of the need for the precise boundaries to be agreed between neighbouring parties, a fixed boundary registration is not the solution for solving a boundary dispute”.

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