To what extent do you think these aims have been (or will be) facilitated by the systems of land registration under the Land Charges Act 1925, the Land Registration Act 1925 and under the reforms set out in the Land Registration Act 2002. Land is a form of property1, which has been for hundreds of years, and still is today one of the most significant possessions in civilisation.
Land is different to other forms of property2, and because of these such features it makes it feasible for more than one person to have a relationship and rights with a piece of land. The practical application of land law is the two-stage process of conveyancing3, the proof of ownership and the discovery of any encumbrances burdening the land.
To facilitate conveyancing, the number of rights recognised by the law as having proprietary standing is restricted4, and to be documented they need to be both clear and easily identifiable. The identification of what rights are held in a piece of land and the rival interests of the various parties who hold them, lies at the very heart of land law. The holding of an equitable interest in another's land necessitates the need to protect it by ensuring it binds the purchaser on transfer.
The most important aspect in the law of property is that "once a particular right is recognised as part of the law of property, or a proprietary right, it takes affect against successive owners of the land in question"5 This leads to a number of consequences, influenced largely by the desire that land can be easily transferable. Before 1925, in transaction of a property the seller had to prove he had 'title' to pass on and was not subject to any unidentified commitments and through a very burdensome process all legal and equitable interests in the land had to be traced back in time some thirty years.
It was because of this complicated process that the 1925 property legislation acts were passed through parliament to take effect as of the 1 January 1926, their aim to simplify the transfer of title without the previous nuisances; so that an estate or interest in land could be transferred as easily as personal property. Before 1926, different estates could exist at law, and through the 1925 legislation, the numbers of legal estates were reduced to two6, all other estates in land now can only exist in equity.
In addition to this the number of legal interests binding on the purchaser of the land were also reduced. The knock on effect of these reductions was a consequent increase in the number of equitable interests. The question of whether or not a purchaser would be bound by equitable interests turned on whether he was able to establish that he was a bona fide7 purchaser of a legal estate without notice8. This entailed him having to establish that he had made all enquiries, which the law considered ought reasonably to have been made.
Through the 1925 Property legislation this aim of simplifying the transfer of land by expanding this preceding restricted system of title registration brought with it two new systems to prove title to land and to investigate third party rights in it, the newest and now more common being the registered land system which is governed by statute, the Land Registration Act 1925 (LRA 1925); and the older system being the unregistered land system which is governed by the old rules of common law and equity as amended by statute, the Law of Property Act 1925 (LPA 1925) and then the Land Charges Act 1972 (LCA 1972).
The idea of these systems was to make it as uncomplicated for a purchaser of land to find out, before buying the property, what rights he will be confronted with and in the case of 'registration of title'; to guarantee the seller actually owns the land he is aiming to convey. By making such rights registrable as land charges, it made it relatively simple to discover to what third party rights the property he was buying would be subject.
The purpose of land charges legislation under the Land Charges Act 1925 and 1972 was to denote a scheme for registering charges relating to 'unregistered land' of which there are five categories9, the most important being the land charges register which sets out six classes of Land Charges in which equitable interests are classified for registration.
The Act replaces the doctrine of notice in that registration is comparable to notice and if the interest is not registered it is void against the purchaser10 but if it is registered the purchaser takes subject to it as determined by s198 of the Law of Property Act 1925 11. (midland bank v green case pg 68) An overreaching conveyance allows the vendor of an estate that is responsible to equitable interests and charges, to convey it to another without such interests or charges, which are removed from the land to the purchase money12.
These interests are identified as 'family interests' and are separated from the 'commercial interests' in the LCA 1972 and as they are seen as being less important, they are not included in the classes of land charges. Because of their inferiority, it was perceived that possessors of such interests would be as happy with money equivalent to the interest as with the actual interest itself, therefore the effect of overreaching is to convert the interest into the proceeds of sale.
Some interests are neither registrable nor overreachable and are termed 'residual interests' are remain subject to the old doctrine of notice. Registered land, introduced by legislation of 1862 and 1875, provided only for voluntary registration of title, and few titles were registered until the Land Transfer Act 1897 which made the registration of title compulsory in dealings with land in the County of London.
Under the Land Registration Act 1925 compulsory registration was gradually extended to cover the rest of the country and since 1 December 1990, the whole of England and Wales has been subject to compulsory registration although conditions do apply13. Registered land is whereby a person's ownership of land is entered upon an official register along with the third party rights affecting that land. It was proposed to simplify the transfer of land and provide better protection for both purchasers and the holders of equitable interests in the land conveyed.
Application must be made within two months of the date of transfer and is completed when the transferees name is entered formally on the register, all supervised by the chief land registrar14, failure to do so in the time renders the purchasers title void15. It is a central idea of the system that once the land is registered, the state will guarantee that the register is accurate in terms of who owns the land.
When land is registered title to all legal estates in land whether freehold or leasehold excepting leases of less than twenty-one years are kept on the register, the idea of this system was that all a purchaser would have to do was to check at the Land Registry for any entries on the register, because a purchaser would take the land subject only to all entries on the register and any 'overriding interests' at the time. The fundamental idea of the registration system was for the register to replace the evidence of entitlement to the land previously provided by the deeds, as done under the unregistered system.
There are three fundamental principals to the registration of title, firstly the mirror principal16, secondly the curtain principal17, and thirdly the insurance principal18. The register of title contains three parts, the property register19, the proprietorship register20 and the charges register21. Under the LRA 1925, all estates and interests are divided into three categories; firstly registered estates and dispositions, which correspond to the different titles estates can be registered under set out in ss. 1 and 2 LPA 1925.
Secondly there are overriding interests22, which are interests that are unregistered but are binding on the purchaser. Overriding interests of whom there is thirteen kinds23 have been widely interpreted in the courts and are an exception to the mirror principal24 and are thus seen as the major downfall of the LRA 1925. The four of real importance are interests a25, f26, g27 and k28. It was suggested in the Law Commission Report 1987 on Overriding Interests that a reform was needed, which will be seen in the Land Registration Act 2002.