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Land registration

The Land Registry website provides lots of information, including application forms, practice guides, explanatory leaflets etc: www.landreg.gov.uk See also the page relating to fees.

On-line access to the register itself can be obtained at www.landregistrydirect.gov.uk.



Adjudicator

Disputes relating to land registration are now heard by an independent adjudicator; see sections 107 to 114. The first adjudicator is barrister, Edward Cousins. A number of deputy adjudicators have also been appointed.

Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 (SI 2171)

Land Registration (Referral to the HM Land Registry) Rules 2003 (SI 2114) - Deals with referrals to the registrar where it has not been possible to dispose of an objection to an action to be made by the registrar by agreement; see 73.

Land Registration (Acting Adjudicator) Regulations 2003 (SI 2342) - make provision for the carrying out of functions during any vacancy in the office of adjudicator.


Notices under the 2002 Act

Loubatiers v Mornington Estates UK Ltd decided 24 March 2004

Section 77 of the 2002 provides that a person must not exercise any of the following rights without reasonable cause i.e. (a) a right to lodge a caution against first registration; (b) the right to apply for the entry of a notice or restriction; and the right to object to an application to the registrar. Under subsection (2) the duty is owed to any person who suffers damage in consequence of this breach.

If someone does make one of these applications is to possible to object and if there is a dispute about the objection the dispute will be referred to the new adjudicator, who may deal with the objection. However, the procedure before the adjudicator may take too long under the notice periods required by the rules. So, in this case, it was held that an application to remove the offending notice etc. may be made to the court. There was a contract for the sale of land where the completion date had passed after service of a notice to complete. The vendor now wanted to sell to someone else but the purchaser argued that there had been an agreed extension and applied for a unilateral notice. The court held that there was no agreed extension and that the vendor was not estopped in any way. It therefore made an order that the notice should be removed. The adjudication procedure under the LRA did not exclude the courts jurisdiction.

Comment

This case is a bit of a blow for the new adjudication procedure, highlighting that it may not be able to respond quickly enough. Those who rush to put notices on the register should also note that s77 will apply where they are not being reasonable.

Article: Misuse of notices by Paul Letman, 3 Hare Court Explains the full implications of the case. (Solicitors Journal 11 June 2004, p692). (The above note is based upon the article. The case is not reported and the transcript is not available).


Overriding interest under 1925 Act

Malory Enterprises Ltd v Cheshire Homes (UK) Ltd
[2002] EWCA Civ 151 The Times, 21 March 2002.

A person who purchased land from a wrongdoer and had been entered on the register as legal owner took the title subject to the right of the lawful owner to seek rectification of the register. The rightful owner has sufficient standing to sue for trespass without rectification. It was in occupation and so had an overriding interest within section 70(1)(g) of the Land Registration Act 1925.


UCB Group Ltd v Hedworth
[2002] EWCA 708

Section 70(1)(g) of the Land Registration Act 1925 refers to the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof . In this case the person claiming an overriding interest had a beneficial interest in the property under a bare trust and was receiving weekly payments under a tenancy by estoppel.

Held

The beneficial interest did not fall within the definition of land in s3(viii) and the sums payable under the tenancy by estoppel were not rent issuing out of or charged upon land within the definition of rent in s3(xxv). There was therefore no receipt of rents within s70(1)(g) and no overriding interest.

Note: Under the Land Registration Act 2002 the definition of overriding interests has changed substantially; and no longer includes a person receiving rents schedules 1 and 3).


Rectification

Forgery - rectification of transfer and charge – LRA Act 2002 s 58 and Sched 4

Barclays Bank Plc v Guy
[2008] EWCA Civ 452

Summary

The court has power to order the rectification of a forged transfer, but upon registration, the register is deemed to be conclusive and it may be difficult to show that a charge entered into by the registered proprietor is a mistake entitling the innocent party to rectification.

Facts

Mr Guy owned 8 acres of valuable development land. A transfer of the land to a company Ten Acres Limited was “procured” and the company was registered as proprietor. Some time later, the company charged the land to Barclays Bank Plc as security for borrowings. Mr Guy then asserted that the transfer had been procured by fraud or forgery. The bank took proceedings to establish the validity of its security and its entitlement to sell, and sought summary judgment against Mr Guy. The trial judge found for the bank. Mr Guy appealed. The case report deals with Mr Guy’s renewed oral application for permission to appeal.

Findings

For the purposes of the application, the Court of Appeal was prepared to assume that the transfer was a forgery and therefore void (para 8). However, the Court of Appeal also made clear that by virtue of s 58 of the Land Registration Act 2002, the register is conclusive, subject only to its rectification. The company was the registered proprietor and was therefore able to charge the property to Barclays Bank. It wasn’t enough for Mr Guy to set aside the transfer, he also had to obtain rectification of the register to remove the charge (para 9). As to this, he had to show that the order removing the charge was for the purpose of correcting a mistake (paras 14 and 19). Lloyd LJ stated (at para 19):
    "I can see that he could well arguably show that the registration of the original transfer was a mistake, especially if the transfer was the product of a forgery, because the registration of something that was not properly executed on the part of the registered proprietor must be a mistake. There is no question of that kind as regards the charge. It was properly executed by [the company]…"
The Court of Appeal then went on to consider the meaning of ‘mistake’ and although it left it open to be explored, discussed and developed in future case law, Lloyd LJ stated (at para 23)
    "…I cannot see that it is arguable that the registration of the charge can be said to have been a mistake, or the result of a mistake, unless at the least Mr Guy can go so far as to show that the bank, the mortgagee, had either actual notice, or what amounts to the same, what is referred to as “Nelsonion” or “blind eye notice”, of the defect in title of the mortgagor, Ten Acre Limited in the present case. I simply cannot see how it could be argued that if the purchaser or chargee knows nothing of the problem underlying the intermediate owner’s title, that the registration of the charge or sale to the ultimate purchaser or chargee can be said to be a mistake. That seems to me to be inconsistent with the structure and terms of the 2002 Act. So the question is whether Mr Guy can show an arguable case, on the evidence, for saying that Barclays Bank had actual notice or was turning a blind eye to matters that it knew, which would if it had addressed them properly, have shown it that Ten Acre Limited did not have a good title to the property".
The Application for permission to appeal was accordingly dismissed

Comment

Property litigators will be aware that there is currently a surge in the number of property frauds of all kinds. This case concerned a simple case of a forged transfer giving rise to registration, followed by an apparently valid mortgage. The simple facts, however, belie some of the more complex issues that arise under the Land Registration Act 2002.

For present purposes it is important to recognise that a lender relying upon title created by a forged transfer is in a different position to a lender relying upon a proprietor’s registered title. In the latter case, the proprietor’s registered title is deemed to be conclusive: s 58 Land Registration Act 2002, and that the proprietor consequently enjoys owner’s powers of disposition under s 23 of that Act including the power to charge the estate at law with payment of money. It follows that the registration of the charge cannot be said to be a mistake for the purposes of para 2(1)(a), Schedule 4, Land Registration Act 2002 (alteration of register pursuant to court order).

So far so good. The only chink in this otherwise straightforward principle arises out of the Court of Appeal’s enquiry into the chargee’s knowledge of the defect in title giving rise to the registration of the proprietor. According to Lloyd LJ, it is at least arguable that if the lender has knowledge of the defect in title of the borrower, it might be said that registration of the charge is a mistake giving rise to rectification of the charge.

At first blush this seems a curious decision since it appears to reintroduce the doctrine of purchaser for value without notice into the Land Registration regime and undermines the conclusive effect of s 58.

Finally, it is worth noting that Lloyd LJ also suggested that Mr Guy should have lodged a caution against the title and that had he done so the bank would have been on notice of his interest and would not have taken the charge.


Rectification sought by person with no private interest in the land - not allowed

Wells v Pilling Parish Council
[2008] EWHC 556 (Ch)

Summary

The right to be registered as proprietor of land at H. M. Land Registry is a private, not a public, right, and as such, any party seeking to challenge a person's registration must have the necessary standing to do so.

Facts

The Council challenged the registration at H.M. Land Registry of Mr Wells as proprietor of land at Morecambe Bay with possessory title, on the grounds that he had not established title by adverse possession. However, the Council itself was not able to show that it had a right to the land adverse to that of Mr Wells, nor that its original application was made in exercise of a statutory power or function. The Council argued that any person could apply for alteration of the register, and this was upheld by the adjudicator.

Mr Wells appealed to the High Court, where the issue was one of whether the application to alter the register was one of private law or public law. The parties agreed that, if the application were a matter of private law, the Council would need to have standing to make the application but had no such standing, whereas if the application were a matter of public law, then the Council had a sufficient interest to make the application.

The decision

Lewison J. held that registration of land under the Land Registration Act 2002 is a private law matter (despite the fact that such registration is recorded in a register that is open to the public) and, as such, the Council did not have standing to make the application. Closing Mr Wells� registered title would deprive him of a freehold estate in land, which was clearly a matter of private law.


Voluntary registration

Article: "Are you ready to beat the 2012 rush?" by Louise Crawford, Denton Wilde Sapte - A practical explanation of the Land Registry's plans to effect comprehensive registration of all property in England and Wales by 2012. Louise explains the various methods the Land Registry is using to persuade land owners, particularly the large ones, to register on a voluntary basis now. These include much reduced fees and the use of the "Land Registry secondee", ie a staff member who will sometimes be sent out to the landowner's office to help sort out the deeds and prepare the applications. (Property Law Journal, 15 May 2006, p5).

See also this Land Registry webpage: Registering your land.

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