Экзамен зачет учебный год 2023 / ELC, Land Registration
.pdfcommon for the future.32 Given the importance of the rule, it is included in the Bill itself rather than, as now, in rules. The Bill provides accordingly that the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless it is shown on the register as determined.33 A general boundary does not determine the exact boundary.34 Rules may, however, make provision which will enable or require the exact line of the boundary of a registered estate to be determined.35 In particular, rules may make provision about¾
(1)the circumstances in which the exact line of a boundary may or must be determined;
(2)how the exact line may be determined;
(3)the procedure in relation to applications for the determination of a fixed boundary; and
(4)the recording of the fact of determination in the register or in the parcels index (which is explained below36).
9.12There are two points that emerge from this rule-making power. First, it will be open to the Lord Chancellor to prescribe a means of fixing boundaries that is less demanding than that which is presently employed. The development of modern mapping techniques is likely to make this possible. It is anticipated that, if this can be done, wider use may be made of voluntary fixing of boundaries, for example, when a development is laid out.
9.13Secondly, there may be circumstances in which it will be possible to require that the boundary be fixed. One particular case arises in the context of adverse possession. We explain in Part XIV of this Report that the Bill introduces a new system of adverse possession in relation to registered estates. In general, a person who has been in adverse possession of a registered estate for at least 10 years will be able to apply to be registered as proprietor of it.37 However, if the proprietor (or certain other interested persons) serves a counter-notice, the application will be rejected.38 There are certain exceptions to this. In particular, where¾
(1)an adjacent landowner has been in adverse possession; and
32See para 9.12.
33Cl 60(1)
34Cl 60(2).
35Cl 60(3). The rules will be land registration rules and will be required to be laid before Parliament only. see Cls 125, 129(1).
36See paras 9.54, 9.55.
37See Schedule 6, para 1; below, para 14.20.
38Schedule 6, paras 2, 3; below, paras 14.32¾14.33, 14.35.
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(2)for at least 10 years of that period of adverse possession, he, she or any predecessor in title has reasonably believed that the land to which the application relates belonged to him or her
the applicant will be entitled to be registered.39 The thinking behind this exception is that legal and physical boundaries do not always coincide, as where an estate is laid out and the fences are not where the plans on the register say that they are. If, in such circumstances, a neighbour has acted in the reasonable belief that he or she owned the land, his or her claim should succeed. The exception does not, however, apply where the boundary has been determined by rules under Clause 60(3).40 Furthermore, rules under Clause 60(3) are likely to require that where an applicant does come within the exception and acquires title to the land, he or she will be required to have the boundary fixed when he or she is registered. This will ensure that he or she (or any successor in title) cannot ever invoke this exception again.
Accretion and diluvion
9.14In Southern Centre of Theosophy Inc v State of South Australia,41 in giving the opinion of the Privy Council, Lord Wilberforce explained the principles of accretion and diluvion as follows. The doctrine of accretion, he said gave recognition–
to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible…, the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner’s land is taken from him by erosion, or diluvion (ie advance of the water) it would be most inconvenient to regard the boundary as extending into the water: the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner’s title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to the gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. It may of
39Schedule 6, para 5(4); below, paras 14.44¾14.52.
40Schedule 6, para 5(4)(b); below, para 14.49. This in itself may encourage landowners to have their boundaries determined where the boundaries do not coincide with the physical layout of the land.
41[1982] AC 706, 716.
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course be excluded in any particular case, if such is the intention of the parties. But if a rule so firmly founded in justice and convenience is to be excluded, it is to be expected that the intention to do so should be plainly shown. The authorities… have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land, as added to or detracted from by accretion, or diluvion, and that this is so, whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified.
9.15The Bill gives effect to these principles. First, it provides that the fact that a registered estate is shown as having a particular boundary does not affect the operation of accretion or diluvion.42 The doctrines of accretion and diluvion will apply therefore, whether the general boundaries rule applies43 or whether the exact line of the boundary has been determined under the principles explained above.44 Secondly, if the parties enter into an agreement about the operation of the doctrine of accretion or diluvion in relation to a registered estate, it has effect only if registered in accordance with rules.45 If, for example, the boundary of two registered estates is a stream, and the respective owners agree that the boundary shall be in a particular place notwithstanding any changes that might otherwise be made by movement of the stream, that agreement will only be effective if it is recorded on the register in accordance with rules.
QUALITY OF TITLE
Introduction
9.16In Part III of this Report we have explained that, on first registration, the registrar may not always register the proprietor with an absolute title.46 He or she may, instead, be registered with a good leasehold title, a possessory title or a qualified title.47 The Land Registration Act 1925 contains provisions which, in their present form date from 1986, for the upgrading of titles.48 Clause 62 of the Bill replicates those provisions with some amendments. In essence, what it does is to empower the registrar to upgrade a title if certain conditions are met. The rules can be summarised as follows.
42Cl 61(1).
43See above, paras 9.9, 9.11.
44See paras 9.11, 9.12.
45Cl 61(2).
46See above, paras 3.43, 3.44, and Cls 9, 10.
47For the effect of registration with the different grades of title, see Cls 11, 12; above, paras 3.45¾3.51.
48See s 77, substituted by Land Registration Act 1986, s 1(1).
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When title can be upgraded
Upgrading freehold title which has possessory title
9.17Where a freehold estate is registered with a possessory title, the registrar may enter it as absolute in two cases.
(1)The first is if he is satisfied as to the title to the estate.49 It sometimes happens that a person is registered as proprietor with possessory title not because his or her title is based upon adverse possession, but because he or she is unable to prove title for the statutory period.50 This may happen because documents of title have been lost or destroyed. If, for example, some missing evidence of title subsequently came to light, the registrar could then upgrade the title. In determining whether he is satisfied as to the title for any of the purposes of Clause 62, the registrar must apply the same standards as he would on an application for first registration.51
(2)The second is if the title has been registered as possessory for 12 years and he is satisfied that the proprietor is in possession of the land.52 If the proprietor has been in possession for 12 years after first registration, the likelihood of any adverse rights being successfully asserted is significantly reduced. Even if they were not barred by adverse possession at the time of first registration,53 it is likely that they will be 12 years later. The Bill defines when a proprietor is to be regarded as being in possession.54 This definition is explained fully in Part X, in the context of rectification of the register.55 There is a power for the Lord Chancellor by order to change the period of 12 years to some other period.56 Thus, if there were (for example) a reduction in the limitation period applicable to actions for the recovery of unregistered land from 12 to 10 years,57 the period of 12 years might be reduced to 10.
49Cl 62(1).
50Which is for at least 15 years: see Law of Property Act 1925, s 44(1) (as amended).
51Cl 62(8).
52Cl 62(4).
53Where the application for first registration is based upon adverse possession, the applicant will have to satisfy the registrar that he or she has been in adverse possession for at least 12 years before he or she can be registered as proprietor.
54See Cl 128.
55See below, para 10.17. The concept of when a proprietor is in possession is very wide under the Bill.
56Cl 62(9). Any such order must be made by statutory instrument and would be subject to annulment in pursuance of a resolution of either House of Parliament: Cl 125(4).
57As the Law Commission has recommended: see Limitation of Actions (2001) Law Com No 270.
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Upgrading freehold title which has qualified title
9.18Where a freehold estate is registered with a qualified title, the registrar may enter it as absolute if he is satisfied as to the title to the estate.58 A person will be registered with a qualified title only where the registrar considers that his or her title can only be established for a limited period or subject to certain reservations that may disturb the holding under that title.59 Before he could upgrade the title under this power, the registrar would have to be satisfied that the cause of his original objections no longer threatened the holding under that title.
Upgrading leasehold title which has a good leasehold title
9.19A leasehold estate will be registered with good leasehold title because the registrar has not been able to satisfy himself as to the superior title. As and when he is able to do so, he may upgrade the title to an absolute one.60 The obvious case would be where the superior title was itself registered for the first time.
Upgrading leasehold title which has a possessory title
9.20Where the title to a leasehold estate is possessory, the registrar may upgrade it from possessory to¾
(1)good leasehold, if¾
(a)he is satisfied as to the title to the estate;61 or
(b)the title has been registered as possessory for 12 years and he is satisfied that the proprietor is in possession of the land;62 and
(2)absolute, if he is satisfied both as to the title to the estate and as to the superior title.63
Upgrading leasehold title which has a qualified title
9.21Where the title to a leasehold estate is qualified, the registrar may upgrade it from possessory to¾
(1)good leasehold, if he is satisfied as to the title to the estate;64 and
58Cl 62(1).
59Cl 9(4); above, para 3.43.
60Cl 62(2).
61Cl 62(3)(a).
62Cl 62(5). Once again, as to when the proprietor will be regarded as being in possession, see Cl 128; below, para 10.17.
63Cl 62(3)(b).
64Cl 62(3)(a).
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(2)absolute, if he is satisfied both as to the title to the estate and as to the superior title.65
No power to upgrade where there is an outstanding adverse claim
9.22None of the powers conferred by the Bill to upgrade a title may be exercised by the registrar if there is outstanding any claim adverse to the title of the registered proprietor which is made by virtue of an estate, right or interest whose enforceability is preserved by virtue of the existing entry about the class of title.66 This provision reproduces the effect of the present law,67 and it is intended to ensure that, if there are any such adverse claims outstanding, they are resolved before any application to upgrade the title is made.
Who may apply for the upgrading of a title
9.23At present, it is apparently only the registered proprietor who can apply to have his or her title upgraded.68 However, the registered proprietor may not be the only person who has an interest in the class of title with which a property is registered. For example¾
(1)a mortgagee in possession might wish to apply for the upgrading of a title if it was minded to exercise its power of sale, not least because it is under a duty to obtain the best price reasonably obtainable on any sale;69 and
(2)a person who is not registered as proprietor, but is entitled to be so registered,70 might wish to secure the upgrading of the title of that registered estate in order (say) to sell the property at a higher price.
9.24The Bill therefore widens the categories of persons who can apply to have the title upgraded. They are¾
(1)the proprietor of the estate to which the application relates;
(2)a person entitled to be registered as the proprietor of that estate;
(3)the proprietor of a registered charge affecting that estate;
(4)a person interested in a registered estate which derives from that estate.71
65Cl 62(3)(b).
66Cl 62(6).
67See Land Registration Act 1925, s 77(4).
68Land Registration Act 1925, s 77 refers only to the registrar acting on his own initiative or “on application by the proprietor”. The registrar can act on his own initiative so that, even under the present law, some other interested person could draw the matter to his attention.
69Cf Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949.
70Such as an executor in respect of the testator’s registered estate.
71Cl 62(7).
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As now, there will be nothing to stop a person who is interested in some other way in a registered estate from requesting the registrar to exercise his power to upgrade a title, even though they have no right to apply to him to do so and he would, therefore, be under no obligation to consider his or her request.
Effect of upgrading title
9.25The Land Registration Act 1925 does not set out the effect of upgrading title. It is left to be inferred. By contrast, the Bill does set it out in order to make the process of upgrading title easier to understand.72
9.26First, the Bill provides that where a registered freehold or leasehold title is upgraded to absolute title, the proprietor ceases to hold the estate subject to any estate, right or interest whose enforceability was preserved by virtue of the previous entry about the class of title.73
9.27Secondly, where a leasehold title is upgraded from a possessory or qualified title to a good leasehold title, the proprietor also ceases to hold the estate subject to any estate, right or interest whose enforceability was preserved by virtue of the previous entry about the class of title. However, the upgrading of the title does not affect or prejudice the enforcement of any estate, right or interest affecting, or in derogation of, the title of the lessor to grant the lease.74
Indemnity
9.28A point that emerges very clearly from the provisions explained in paragraphs 9.26 and 9.27 is that, on the upgrading of a title, there is some risk that an estate, right or interest may thereby be defeated. The person who had previously had the benefit of that estate, right or interest may therefore suffer loss. We explain in Part X of this Report75 that, where a person suffers loss by reason of the change of title under Clause 62, he or she is to be regarded as having suffered loss by reason of the rectification of the register.76 As such, he or she is entitled to be indemnified for that loss.77
Use of register to record defects in title
9.29Clause 64 of the Bill creates a new power, and the background to it requires some explanation. One of the principal objectives of the Bill is to create a conveyancing system in which title can, so far as possible, be investigated on line
72Cl 63.
73Cl 63(1).
74Cl 63(2).
75See below, para 10.31.
76Schedule 8, para 1(2)(a).
77Schedule 8, para 1(1)(a).
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by computer.78 It follows that every effort should be made to make the register as conclusive as to title as it is practically possible to make it.
9.30Matters that can make a title defective come in several forms and the Bill deals with them in different ways.
(1)The person who appears to be owner may not be. The fact that a person is entered in the register as proprietor of a legal estate is itself proof that that legal estate is vested in him or her, even if, but for the fact of registration, it would not be.79
(2)The owner may have limited powers and may make a disposition that he or she had no power to make. As regards any disponee, the proprietor of a registered estate or charge is taken to have unlimited powers of disposition in the absence of any entry to the contrary on the register.80 This protects disponees against dispositions that might otherwise be open to challenge as being ultra vires.
(3)The property may be subject to incumbrances. We have explained in Part V of this Report how a disponee under a registered disposition takes his or her interest subject only to¾
(a)entries on the register;
(b)overriding interests;
(c)matters excepted from the effect of registration; and
(d)in the case of a disposition of a leasehold estate, the burden of any interest that is incident to the estate (such as a restrictive covenant contained in the lease).81
9.31There is, however, another kind of defect in title. It is one for which the land registration system does not presently cater. It can only be investigated by forms of inquiry outside the registration system. This is where something occurs in the course of the ownership of property that itself makes the title bad. The obvious cases are where either a lease is subject to a right of re-entry for breach of covenant and the tenant commits a breach of covenant, or where a freehold is subject to a rentcharge, the rentcharge is supported by a right of re-entry, and the freeholder has failed to pay the rentcharge. However, it is only a few such situations that are a cause of concern and it is these that Clause 64 is intended to meet.
78See above, paras 1.5, 2.1(1).
79See Cl 58; above, para 9.4.
80See Cl 26; above, para 4.8; Cl 52; above, para 7.7.
81See Cls 29, 30; above, Part V.
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9.32In many of the most obvious situations in which an occurrence of itself invalidates the title, there are already simple and well-developed practices for meeting the problem. These practices are unlikely to impede speedy conveyancing and do not require extensive inquiries “off line”. The obvious example is that of an assignment of a lease or under-lease, where the assignor is in breach of covenant. Where a landlord accepts rent from a tenant whom he or she knows to be in breach of covenant, he or she will be taken to have waived the breach of covenant.82 Conveyancers take advantage of this and require the assignor of a lease to produce the last receipt for rent prior to the assignment. This creates a rebuttable presumption that all the covenants and provisions of the lease have been duly performed.83 This is a comparatively simple matter and it is performed as a matter of course. No change in the law or in practice is needed so long as waiver continues to have this potent effect.
9.33There are however situations which are not satisfactorily met at present and where it would be desirable to have a means of entering on the register a defect in title that could cause the registered estate to be terminated. There is one case, in particular, that concerns us. It is, we suspect, fairly common, and it can best be explained by an example. X purchases a registered freehold estate from Y which is subject to a rentcharge in favour of Z. Z has a right of re-entry in the event of the non-payment of the rentcharge. In the course of undertaking the conveyancing work, X’s solicitor discovers that the rentcharge has not been paid by Y for some years. X is prepared to take the risk of acquiring the land nonetheless. X’s title is, in law, a bad one. If X decides to sell the land, an intending buyer may not enquire as to whether the rentcharge has been paid until after he or she has expended money in relation to the purchase, perhaps having made local searches or engaged a surveyor. There will be nothing on the register to indicate the defect in the title.
9.34Clause 64(1) provides that, if it appears to the registrar that the right to determine a registered estate in land has become exercisable, he may enter the fact on the register. There is a rule-making power in relation to entries made under Clause 64(1). Such rules may, in particular, make provision about¾
(1)the circumstances in which there is a duty to exercise the power conferred by that subsection;
(2)how entries under that subsection may be made; and
(3)the removal of such entries.84
82See Megarry & Wade’s Law of Real Property (6th ed 2000), 14-125, 14-126.
83See Law of Property Act 1925, s 45(2), (3).
84Cl 64(2).
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As regards the first of these matters, it is likely that the duty will be confined to cases, such as that explained above in paragraph 9.33, where there is no well established procedure for dealing with the problem.
9.35An obvious objection to this new duty is that it will not be easy to enforce. A solicitor or licensed conveyancer will be very reluctant to inform the Registry of a defect in his or her client’s title, particularly where it is one that could lead to the determination of that client’s estate. However, as we explain in Part XIII of this Report, the move to electronic conveyancing will provide a means of enforcing such obligations via network access agreements.85 Under the system of electronic conveyancing that is to be created under the Bill, it will be solicitors or licensed conveyancers acting for buyers who will actually carry out the process of registration. They will do so in accordance with the terms of a network access agreement with the Registry that may require them to disclose specified information.86 They are likely to know far more about the conveyancing transaction than the Registry does at present when documents are submitted for registration. They may therefore know the facts that make a title bad, even though these will not necessarily appear from the conveyancing documents that, under present arrangements, would be sent to the Registry for registration.
ACCESSING INFORMATION
Introduction
9.36The ability to obtain information from the registers of title and cautions is an essential feature of the system of conveyancing that the Bill seeks to create. Easy and open access to information held by the Registry are the keys to speedier conveyancing. The Bill contains a number of provisions which relate to the access of information from the registers. Some of the provisions are new or are an extension of existing ones.
Open registers and their inspection
The significance of the open register
9.37One of the most important provisions of the Land Registration Act 1925 is section 112, as substituted by the Land Registration Act 1988.87 It created the open register.88 Prior to the substitution of the new section 112, the register could only be inspected by the registered proprietor or by an authorised person. Those constraints were removed by the new section. Section 112 has fundamentally changed both the perception and the potential of land registration. First, it has
provided the necessary springboard for the development of electronic
85See below, para 13.52.
86See below, paras 13.36 and following.
87The Land Registration Act 1988 implemented the recommendations of the Law Commission in its Second Report on Land Registration (1985) Law Com No 148.
88For the rules governing the operation of the open register, see Land Registration (Open Register) Rules 1991; Ruoff & Roper, Registered Conveyancing, B-404.
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