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The Land Registration Acts in England and Wales, focusing on areas of compulsory registration, topics such as identity and boundaries, conversion of title, treatment of leases, and minor interests index. It also covers the description of registered land and the importance of registration for facilitating dealings with leases.
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PROPERTY LAW
LAND REGISTRATION
Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965
Ordered by The House of Commons to be printed 26th October 1983
$ 3. 5 5 net
The Law Commission was set up by section 1 of the Law CommissionsAct 1965 for the purpose of promoting the reform of the law.
The Law Commissioners are- The Honourable Mr. Justice Ralph Gibson, Chairman. Mr. Stephen M. Cretney. Mr. Brian J. Davenport, Q.C. Mr. Stephen Edell. Dr. Peter North.
The Secretary of the Law Commission is Mr. J. G. H. Gasson and its offices are at Conquest House, 37-38 John Street, Theobald’s Road, London WClN 2BQ.
Paragraphs Page (d) Should more leases in non-compulsory areas
Page APPENDIX3: Land Registry Mapping Practice........... 71
APPENDIX4: List of persons and organisations who sent comments on Working Papers Nos. 32,37, and 67 ................................^74
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V .-.
THE LAW COMMISSION
Item IX of the First Programme
REPORT ON LAND REGISTRATION
To the Right Honourable the Lord Hailsham o f Saint Marylebone, C.H., Lord High Chancellor of Great Britain
Background
Between 1970 and 1976 we published four working papers,’ in which we discussed particular aspects of land registration which seemed in need of reform. We did this under Item IX of our First Programme which was extended, at our request, in 1966’so that we could examine the law relating to the transfer of registered as well as unregistered land.
1.2 Following preliminary consultation, we. identified a number of prob- lems the solution of which would help to improve, simplify and modernise the system of land transfer. These topics were canvassed in the working papers and included the question whether the register should be open to public inspection, the problems associated with the identification of land and its boundaries, the registration of title to leases, the protection and priority of interests known as “minor interests”, rectification of the register and the connected topic of indemnity, and the interests known as “overriding interests” which bind pur- chasers despite the fact that they are not recorded on the register. We received many valuable comments on these topics, for which we are most grateful. A list of the commentators is set out in Appendix 4.
1.3 Since 1976, when we published the last of our working papers on this subject, our progress has been slow because we have given priority to more pressing matters. We have also had to consider the effect of various judicial decisions on the topics with which we have been concerned, and in the light of these decisions to rethink matters of policy. Perhaps the most important of these decisions was that of the House of Lords in Williams & Glyn’s Bank Ltd. v. B ~ l a n d , ~ a case which was concerned with overriding interests and the protection of the rights of joint beneficial owners of land. You asked us to consider the consequences of that decision, which has important implications for conveyancing under both the registered and unregistered systems. We decided to prepare a separate report on these implications and this report was published in August 1982.
‘No. 32 (1970). No. 37 (1971), No. 45 (1972) and No. 67 (1976).
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1.4 After publication of our report on the Boland case we were able to resume work on the remaining matters dealt with in our working papers. Having completed work on some of these matters we have decided to submit our report on them. It seems to us unnecessary for the purposes of this short report on self-contained topics to provide any exposition of the land registration system as a whole. This has been well done in several textbooks6 and we do not propose to cover the same ground. It may however be helpful, as part of our account of the background, to indicate certain features of the system which are relevant to our limited purposes:- (1) The system of land registration is a statutory one governed by the Land Registration Acts 1925 to 19717 and subordinate legislation,’ and administered by the Chief Land Registrar (who is appointed by the Lord Chancellor) and by his staff in the Land Registry and District Land Regis- tries. (2) The system was primarily designed to simplify the process of land transfer rather than to alter the substantive law relating to land, though some aspects of the substantive law are affected by the system. (3) The foundation of the system is the registration of title to freehold and long leasehold estates, the legal title being established by an official register rather than by the assemblage of deeds and documents upon which unregis- tered titles are based. Since it is titles to land, and not the land itself, which are registered, it follows that estates in the same piece of land are registered
not. For example, the registered freehold of Blackacre may be subject to an unregistered lease, or the unregistered freehold of Blackacre may be subject to an unregistered lease and a registered underlease. (4) The registration of a title is invariably carried out by reference to a plan based on the Ordnance Survey Map, so that all registered titles are readily identifiable on the map. (5) In addition to the registration of title to freehold and leasehold estates the 1925 Act provides for the registration of legal mortgages or charges upon such estates, so that title to these mortgages and charges is established by the register. The many other rights and interests in land such as restrictive covenants, easements and various kinds of financial burden are not suscept- ible of substantive registration: they are however capable of protection by entry on the registers of the titles which they affect, and a limited class of interests (known as “overriding interests”) is protected even though they are not entered on the register.
I I
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~ II separately and that some such titles may happen to be registered and others
5 0 ~ rdecision follows the policy outlined in para. 2.55 of our Seventeenth Annual Report 1981-1982 (I983), Law Com. No. 119, except that we have deferred completion of work on Inspection of the Register in order to obtain fresh material and undertake fresh consultation on certain aspects of the subject. ‘See e.g. Ruoff & Roper The Law and Practice ofRegistered Conveyancing 4th ed. (1979), Ruoff and West, Concise Land Registration Practice 3rd ed. (1982) and Hayton, Registered Land 3rd ed.
‘Land Registration Act 1925 (the principal Act), Land Registration Act 1936, Land Registration Act 1966 and Part I of the Land Registration and Land Charges Act 1971. ‘This subordinate legislation is of great practical importance. The principal rules *are the Land
. (1981).
Registration Rules 1925 (S.R. & 0.1925/1093) and these and other rules and orders.regulate such matters as the procedure on^ applications, searches, fees, forms and various administrative matters.
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2.1 In this Part of the Report we are concerned with the manner in which the physical extent of land is recorded in registered conveyancing. We first discuss the distinction between the identity of land and the boundaries of land. We then review the relevant law and practice under the registered system. We go on to examine certain criticisms of the system. We conclude against recom- mending any substantial changes.’
Introduction It is important at the outset to distinguish two related concepts, the identity of land and its boundaries. A conveyance of “No. 116 High Road, Barchester”, or “all that field in the parish of Dale containing 1-23 acres or thereabouts recently in the occupation of Josiah Smith” may be sufficient to identify the property, that is to relate the words used to an identifiable plot of land; but it may be insufficient to indicate the exact boundaries and thus to provide the answer to such questions as whether the strip of land along which the owner of No. 116 High Road, Barchester wishes to drive his car is wide enough for the purpose. Indeed, sometimes it will not even be possible to identify the land from the description in the conveyance. There may, for example, be no existing “No. 11 6” in High Road, Barchester; and there may be no evidence as to which land Josiah Smith occupied in the parish of Dale.
2.3 Conveyancers in England and Wales have always accepted the need to identify the land conveyed. They have been less ambitious in seeking to define precise boundaries. The principal reason for this is that the boundaries of land in different ownerships have rarely been settled on the ground, either by agreement or by judicial or other determination. Land cannot be precisely described if it has not been precisely defined on the ground.
2.4 In some countries boundaries are often marked out on the ground as a result of some process of adjudication. In others, particularly in the Common- wealth, the problem is simplified by the fact that the title to most land com- mences with relatively recent grants from the Crown or the Government, in which the boundaries of all the land in a particular area are accurately and clearly defined. In this country a conveyancer operating under the unregistered system, who wishes to be precise about boundaries, is faced with the almost impossible task of defining in a document something which has not been determined on the ground.’ Solicitors acting for vendors, mortgagors and lessors have for that reason generally advised that the deeds can only describe the land in qualified terms. The other party has little option but to accept this qualification. In successive dispositions areas and dimensions will often be
‘Identity and boundaries were discussed in Working Paper No. 45, paras. 1-57. The preliminary view there expressed was that no substantial reform of the law was needed (para. 57). 2There are of course cases (as, for example, where a building has been subdihded) in which adequateidenfl~cationpresupposes precision in fixing the boundaries: seeScarfe v. A d a m 11981 I 1 All E.R. 843.
stated to be of a particular number of acres or feet “or thereabouts”; and plans are frequently expressed to be “for the purposes of identification Absolute precision is thus avoided, primarily in order to protect the grantor; for if the description in a conveyance is such that, as a matter of construction, it extends to land to which the grantor has no title he is normally liable in damages for breach of the statutory covenants for title.
The present law and practice
Description of registered land
2. the Act, which is in the following terms:-
“Registered land may be described:- (a) by means of a verbal description and a filed plan or general map, based on the ordnance map; or (b) by reference to a deed or other document, a copy or extract whereof is filed at the registry, containing a sufficient description, and a plan or map thereof; or ( c ) otherwise as the applicant for registration may desire, and the registrar, or, if the applicant prefers, the court, may approve, regard being had to ready identification of parcels, correct descriptions of boundaries, and, so far as may be, uniformity of practice; but the boundaries of all freehold land and all requisite details in relation to the same, shall whenever practicable, be entered on the register or filed plan, or general map, and the filed plan, if any, or general map shall be used for assisting the identification of the land.”
Provision for the description of registered land is made by section 76 of
2.6 In practice paragraph (a) of section 76 is invariably adopted: a verbal description, which refers to a filed plan5 on which the boundaries of the registered land are shown in red, is entered in the register.
2.7 The basis of all registered descriptions of land is the Ordnance Survey map.6 Under rule 2O(iii) an applicant for first registration is obliged to furnish sufficient particulars by plan or otherwise to enable the land to be fully
3This expression, however, does not preclude the use of a plan to assist in construing an imprecise description of the land in the conveyance: Wigginton & Milner Ltd. v. Winster Engineering Ltd. [1978] 1 W.L.R. 1462; Spall v. Owen (1982) 44 P. & C.R. 36. Under condition 13 of The Law Society’s General Conditions of Sale (1980 ed.) and condition 13 of the National Conditions of Sale (20th ed.) the vendor is not required to define exact boundaries, fences, ditches, hedges or walls. ‘Law of Property Act 1925, s. 76. There is also the possibility of liability in tort for negligence: see Jackson v. Bishop and Walter Thomas Properties (1979) unreported, Court of Appeal Decision 1791481 and Farrand [1982] Conv. 324. “filed plan” is an individual plan, based on the Ordnance Survey map, prepared for an individual title. The extent of the registered property is edged with red on the plan, the original of which is filed in the appropriate District Land Registry. A copy of the filed plan is bound up in each land or charge certificate. ‘L.R.R. 1925, r. 272. The relevance of the Ordnance Survey to land registration is fully discussed in the Report of the Ordnance Survey Review Committee (1979), H.M.S.O. The Committee, under the Chairmanship of Sir David Serpell, K.C.B., C.M.G., O.B.E. was appointed t‘b “consider and make recommendations about the longer term policies and activities of the Ordnance Survey and ways of financing them.”
1
the registered system is superior to the standard in unregistered conveyancing. Yet this is not to say that all problems disappear. In particular, the filed plan may not throw light on boundary problems. Before referring to the relevant rules concerning the boundaries of registered land,15however, we shall men- tion two further features of the Land Registry’s mapping work: the “public index map” which is based upon provisions in the Rules, and the “estate layout plan” procedure which has been established by administrative arrangements to meet the particular needs of estate development.
Public index map
Under rule 8 the Land Registry is required to keep index maps which show the position and extent of every registered estate. These maps, known collectively as “the public index map”; are open to public inspection, and a- search enables the applicant to ascertain whether title to particular land is registered and if so under what title number. A search of the map may also help a purchaser of land, title to which is to be registered, to avoid certain common problems. In Working Paper No. 45 we said:- “50. The form of search described in the previous paragraph may be helpful to a purchaser in avoiding some of the difficulties that may arise when, after completion, he applies for his name to be put on the register. This is because it will tend to expose two species of defect to which a plan attached to the draft contract (that is to say, a plan which is likely to be used as the basis for that on the conveyance or lease which will be submitted in due course with the application for registration) may be subject.
That remains our view.
Estate Development
The second feature of the Registry’s work which we should mention is the “estate layout plan” procedure16designed for use in connection with the
“See paras. 2.17 and 2.18 below. 16A full description of this procedure is contained in Practice Leaflet No. 7 “Development of Registered Building Estates” published by H.M. Land Registry. (It should be noted that even outside compulsory areas title to a building estate may still be registered voluntarily: see Land Registration Act 1966 and Practice Leaflet No. 12. Many such estates are so registered.)
development of new building sites, the title to which is registered. Whilst there is no compulsion on developers in compulsory areas to use this procedure, they choose to do so in the great majority of cases."
2.14 The first step in the procedure is for the developer's solicitor to submit an estate layout plan for the approval of the appropriate district land registry. The plan has to be drawn to a suitable scale" and has to show the extent of the land being developed, together with the precise extent of each plot to be sold identified by a plot number. This provides an early opportunity to clear up any discrepancies which may exist between the proposed layout and the registered extent of the developer's land. Once the estate layout plan has been approved, each plot number becomes an authoritative reference for the developer, the purchaser and the Land Registry, and defines the extent and location of the plot within the developer's title without the need for a separate plan.
2.15 Under this procedure, by quoting the relevant plot number a pur- chaser can be supplied with an official statementls containing all the informa- tion he needs regarding the developer's filed plan. This will include confirma- tion that the land which he is buying is within the developer's registered title. Through the use of the procedure the Land Registry's operations are speeded up because there are no longer interruptions in the flow of the registration work caused by having to withdraw for copying purposes what is, in most cases, a large and complicated title plan. Again, the purchaser can apply for an official search of the register just before completion by referring to the plot number without a separate plan. Although the eventual instrument of transfer of the plot will need to contain a plan when it is lodged for registration, the prepara- tion of the plan should provide no problem if it agrees with the previously approved estate layout. Moreover, in many cases, a standard form of transfer will have been accepted by the Land Registry for the development of the estate, so that the purchaser will know that no questions will arise as to the grant of any necessary appurtenant rights.
2.16 The efficient operation of this procedure depends upon good com- munications between the Land Registry and the participating developers and their solicitors. If developers depart from the approved layout plan, for exam- ple in the siting of houses or roads, difficulties can be caused if the changes are not notified to the Land Registry in good time. Unfortunately, it is often found on surveyzothat fences have not been erected in accordance with the approved layout. Nevertheless, as soon as the Registry becomes aware of departures from the layout, it can take steps to have the situation rectified so as to avoid trouble for subsequent purchasers. Proper liaison between developers, sol- icitors, builders and fencing contractors is extremely important and we are sure that the Chief Land Registrar will continue to do all that he can to improve standards in this regard. "If voluntary registrationof a building estate in a non-compulsory area is applied for, the applicant is obliged to use the estate layout plan procedure: see Practice Leaflet No. 12. 'The scale most commonly used is 11500 and is preferred by the Registry, but a recognised smaller scale down to 111250 is normally acceptable. 19Anapplication has to be made in Form 101 for an official inspection of the filed plan-see Land Registration (Official Searches) Rules 1981 (S.I.198111135), r. 10. ZoTheLand Registry arranges for surveys to be made from time to time during development to obtain up-to-date information which will show deviations from the approved layout.*
2.20 It cannot be said, however, that boundary problems can be resolved with the same facility. Boundary disputes are both a source and a product of ill-feeling between neighbours; and we have no doubt that the vagueness with which boundaries have traditionally been defined is an important contributory factor to these disputes. In this context, it is interesting to contrast the attitudes of the Victorian era with those of today. In 1870 the Royal Commission on the Operation of the Land Transfer Actz5had this to say:-
directly with the person in possession, is in the vast majority of cases satisfied that his employer is getting the thing he contracted to have, and the history of which is narrated in the abstract of title. If there is any border land over which the precise boundary line is obscure, it is usually something of very trifling value, and the purchaser is content to take the property as his vendor had it, and to let all questions of boundary lie dormant.” In recent years a less complacent view has been expressed. In 1979 the Royal Commission on Legal Services said:- “Whether a title is registered or unregistered, one of the most fruitful sources of dispute and litigation relates to boundarie~.”~~ and in his Fifth Annual ReportZ7the Lay Observer appointed under the Solicitors Act 1974 commented in these terms:- “As a layman, I have been surprised by the frequency of these disputes and I have been appalled by the extreme bitterness which they so often generate. In a significant proportion of these cases the legal costs borne by the parties in dispute are out of all proportion to the value of the property concerned; indeed not infrequently the amount of land in dispute is measured in inches rather than feet, certainly less than the width of a line on a large scale plan.”
2.21 The fact that most conveyancing is now concerned with small plots in densely populated urban areas rather than with the broader acres to which the 1870 Commission were directing their main attention helps to explain this difference of attitude. The importance of precisely recorded dimensions is greater than it used to be. The question therefore arises whether, in modern conditions, the general boundaries ruleZ8remains satisfactory in its operation.
Merits of the General Boundaries Rule It may be helpful first to put the rule in its historical context.zgIn this country it has not been the traditional practice for the boundaries of land in different ownerships to be settled on the ground. In 1862, when land registra- tion was first introduced into English law, it was enacted30 that the exact
25C.20,para. 45. This was the Act which was later entitled the Land Registry Act 1862 (see Short Titles Act 1896). *‘Report (Cmnd. 7648), Annex 21.1, para. 10. 2’1979 (1980) H.C. 507, para. 19. “See para. 2.17 above. “A more detailed historical account is given in paras. 14-20 of Working Paper No. 45. 30LandRegistry Act 1862, ss. 7, 10. See n. 25 above.
boundaries of registered property be shown. This necessarily involved a detailed survey. Moreover, it was impossible to fix the boundaries of the plot to be registered without ascertaining the boundaries (and thus also investigating the title) of all adjoining land. The cumbersome and expensive process of identifying and establishing boundaries in this way contributed in large meas- ure to the failure of the 1862 The 1870 Royal Commission32concluded that it was undesirable to force people, as a condition of registration, to have their boundaries define&-
“It is clearly very onerous to the registering owner. And it seems very vexatious to others, that they should be compelled to watch a legal process and perhaps to adjust an undefined boundary, because one of their neigh- bours wants to register his title.”33 -
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2.23 Following the recommendation of the Comrni~sion,~~the require- ment that all registered boundaries be fixed was removed by the Land Transfer Act 1 875,35and the substance of the general boundaries rule now incorporated in rule 278 was first given expression in 1898.
2.24 The 1870 Commission gave the fact that the precise fixing of bound- aries was rarely of any utility as one of its reasons for abandoning insistence on fixed boundarie~.~’We doubt whether this reason is quite as convincing as it was. It seems to us that the basic problem is that in England and Wales the principle that boundaries are not precisely defined has for centuries been fundamental to the conveyancing process. It follows that the compulsory fixing of boundaries would necessarily involve provoking disputes. The Lay Observer has put the point in this way:- “It seems to me that any attempt to introduce a more precise system of recording land holdings would be very likely to stimulate a large spate of the very disputes which the changes were designed to prevent. Landowners who are at present quite content with the apparent boundaries of their properties might well, if asked to agree a more precise delineation, question whether their apparent boundaries were right and engage in litigation if they thought they were wrong.” A further difficulty is that precise information concerning boundaries is not usually available at the time of registration, and in many cases adjoining titles are derived from different sources so that there is inconsistency between the respective deed plans.
2.25 If boundaries are to be fixed, notice clearly has to be served on all neighbouring owners and their titles have to be investigated. The fixing of boundaries, not only on all first registrations but also on many dealings with registered land, would involve an enormous amount of work for the Registry,
3’Between 1862 and 1875 there were 650 registrations: see (1983) 127 S.J.3.
33Report(C.20), para. 80 9bid., para. 95 IX. %ection 83(5). 36LandTransfer Rules 1898 (S.R. &^ 0.^ **1898/575), r. 213 made under the Land Transfer Act
37Report (C.20), para. 45. See para. 2.20 above. 38FifthAnnual Report 1979 (1980) H.C. 507, para. 19.**
para. 2.20 above.
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Introduction The Act provides not merely for the registration of freehold and certain leasehold1titles but also for every title to be given an appropriate class or grade, according to its quality. The Act also provides for the conversion (or up- grading) of one class of title to a better class. In this Part we briefly describe the classes of title, and we discuss the question whether the system of classes should be retained. We then consider and criticise the statutory provisions for the conversion of title. Finally, we make recommendations designed to simplify the system and clarify the law. The comparative tables set out at paragraph 3. below summarise the principal effects of the law relating to conversion as it is and as we propose it should be.
3.2 In our Working Paper No. 32 the topic of conversion of titles arose in the context of our discussion of leases, and our comments (in paragraphs 58 and 59) were confined to one aspect of the topic. However the provisions of the Act (which are contained in section 77 set out in Appendix 2 below) relating to the conversion of leaseholds are intermingled with those relating to the conver- sion of freeholds, and we decided to look at these provisions as a whole. We found the provisions to be so ill-arranged and difficult that we resolved to recommend that they should be replaced by a simpler and more logical state- ment.
Classes of title The Act provides for four classes of title: absolute, good leasehold, possessory and qualified, with the result that a registered title may fall into one of seven categories:- absolute freehold possessory freehold qualified freehold absolute leasehold good leasehold possessory leasehold qualified leasehold.
Generally the effect of registration by reference to a class of title is to define the extent to which the title may be relied upon by a purchaser for value, and correspondingly the extent to which it has the backing of the state guarantee of title' provided by the Act: plainly a purchaser who knows that the title is subject to a possible adverse claim cannot complain if such a claim is made and cannot expect to be indemnified for his loss if the claim is successful.
'See Part IV below. 'See para. 1.5 above.
3.4 The particular effects of registration in one or other of the seven categories of title listed above are stated in sections 5-7 and 9-12, which are set out in Appendix 2 below. For present purposes a short sketch of these provi- sions is sufficient:-
(1) Classes of freehold title An absolute freehold title3 is subject only to whatever entries on the register and whatever overriding interests4affect that title. Apossessory freehold title5 differs from an absolute freehold title only in that it is also subject to the possibility of some other third party claim. A qualified freehold title6 differs from an absolute freehold title only in that it is subject to some specific and identifiable defect which is recorded on the register.
An absolute leasehold title7 is subject only to whatever entries on the register and whatever overriding interests affect that title or a superior title, and to the provisions of the lease itself. A good leasehold title' differs from an absolute leasehold title primarily in that it is subject to the possibility that the lessor's title to grant the lease is defective. A possessory leasehold titles differs from an absolute leasehold title only in that it is subject to the possibility of some other third party claim. A qualified leasehold titlelodiffersfrom an absolute leasehold title only in that it or the superior title is subject to some specific and identifiable defect which is recorded on the register. The decision in each case as to the class of title to be granted is a matter for the Registrar, acting on appropriate evidence and in accordance with the require- ments of the Rules."
(2) Classes of leasehold title
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Should the classes of title be retained? The categorisation of inferior titles dates back to 1870 when a Royal Commission advocated a system not only in which the Registrar would have a discretion to accept titles which were technically imperfect but also in which 'inferior' types of title, limited in their effect, could be granted in particular circumstances.'2 The existence of inferior titles in the registered system reflects the different degrees of indefeasibility of title in English land law generally. For example, a title which is in the process of being acquired by adverse possession will not be as secure as a title which has been granted by the true owner.
I 3.
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%ection 5. 'I.e. one of the interests (specified in s. 70(1)) not entered on the register but subject to which registered dispositions take effect. See para. 4.18 below. 5Se~tion6. %Section 7. 'Section 9. %ection 10. %ection 11. 'OSection 12. "See sections 4 and 8, and rules 1 9 4 7. '*Report of the Royal Commissioners appointed to inquire into the Operation .of the Land Transfer Act (1870) C.20, paras. 75-78.
