This essay shall aim to provide an explanation as to whether or not the passage of the Land Registration Act 2002 has fundamentally changed any area of property law in England and Wales. To do this, it shall be necessary to examine the Land Registration Act of 1925, which was the precursor to the 2002 Act, as well as the history of land and property law in this country, including the ‘feudal’ system of land ownership. To assist in providing the explanation, this essay will use academic textbooks, academic journal articles, lecture notes and stated cases from land disputes, as well as internet sources such as the websites of the Land Registry and the Law Commission. The Land Registration Act 2002
The feudal system of land ownership was developed by the Normans in England after 1066. It was based on duties and rights resting essentially on land ownership, tenure and the resultant relationship between the Crown and the Lords who were given parcels of land in return for services to the Crown.1 In these Middle Age times, owning land also gave one the rights to crops, woodland, fish and wildlife and land ownership was linked directly to wealth.
It should be noted that a person cannot own land as all land is still owned by the Crown, but rather they have a right in the land or an estate in the land. In times of war, the Lord who had been granted an estate in the Crown’s land would supply soldiers or equipment in return for that estate but this changed to monetary payments instead with the Tenures Abolition Act of 1660, just prior to the start of the English Civil War in 1642.
2 In any problem question concerning land, it is important that land is correctly defined, as well as defining where it begins and ends. The 1925 Law of Property Act provides the definition as ‘Land includes land of any tenure and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings, and other corporeal hereditaments; also a manor, an advowson and a rent and other incorporeal hereditaments and an easement, right, privilege or benefit in, over or derived from land.’
3 Although this definition may seem complicated, it is important to understand the definition as this is very important when the law intervenes in cases where items of value have been found in the land, on the land or under the land. These will be discussed in due course, after we have explored the legal definition of land and its terminology. The term hereditament just means something that is capable of being inherited and corporeal means something which has a physical or tangible existence.
The term incorporeal simply means something which is not tangible, such as a right over another’s land. The law has also held that whoever owns the land owns everything up to the heavens and down to the depths of the earth, but the case of Bernstein v Skyviews 4 demonstrated that a land owner only has rights that extend to a height necessary for the ordinary use and enjoyment of his land.
It is important to note that there are different rules to be applied to items of value, depending on whether they were found on the land or in the land as seen in the case of Parker v British Airways Board . Now that a definition of land has been provided, one can move on to examine the 1925 Land Registration Act so that it can be compared to the 2002 Land Registration Act to see if there has indeed been a revolution in the sphere of property law.
The 1925 Act was also considered a revolution at the time it was introduced, and it was brought in to reduce legal estates and interests capable of existing in order to simplify land law as well as providing mechanisms for dealing with equitable interests. The 1925 Act also aimed to reduce the scope for the Doctrine of Notice, which was a system for determining when a party had notice of an equitable interest, and it was divided in to three types. The most important part of the 1925 Act was the introduction of a formal land registry, in which registration constituted actual notice of the interest.
5 The key principle here was to have as much land as possible formally registered and they could then be evidenced by registration and not by title deeds, as was the case with unregistered land. One of the most controversial aspects of the 1925 Act was Section 70 which dealt with overriding interests. The controversy arose from the fact that there was a category of property right that could bind a purchaser of a registered title without that interest appearing on the register.
This was introduced because some overriding interests are so minor they could not all be registered and with public rights of way, it is not always clear who should register them. One of the most famous cases that discusses this is that of Williams & Glyn Bank v Boland .6 The 1925 Act was a watershed in the history of land law as it bundled together six separate pieces of land and property legislation, as well as trying to simplify the transfer and interests to others, as well as the fragmentation of ownership by creating numerous different interests in favour of others.
7 Now that the 1925 Land Registration Act has been examined, it can be seen that at the time, it too was born out of recognition that the system it replaced was no longer suitable for the social and economic conditions of the time.8 These were the same reasons given for introducing the Land Registration Act of 2002, and one can now look at this Act to see if it has fundamentally changed any areas of property law in England and Wales, compared to the 1925 Act. Some of the most important changes that the 2002 LRA introduced were the reforms to the system of registration of title to land, including changes to rules relating to adverse possession, overriding interests, leases and how third party interests in land are protected.
The 2002 LRA also introduced the concept of ‘electronic conveyancing’ which has evolved from today’s reliance on computers and the internet. Each of these new changes shall be discussed in due course, the first of which shall be the registration system. The registration system is now governed by the Land Registry, and has an open principle, which means that under Section 66(1) any person may inspect the register of title.
9 This new, modern system is a vast improvement over the old system from 1925 when computers and internet access simply did not exist. Another fundamental change that the 2002 LRA introduced was that concerning Adverse Possession, or as it is more commonly known in the tabloid media, ‘squatter’s rights.’ This has become a hot topic of concern in the media recently, particularly where members of the travelling community are concerned. Adverse Possession is a means of informally acquiring title to land in both the registered and unregistered systems.
It has also been called ‘land theft’ or legalised theft but some commentators see it as a way to regulate what may appear to be otherwise ownerless or abandoned property. The strong emotions that this topic generates are one of the reasons why the law in this area was reformed in the 2002 Act. When one is considering registered land, the ‘squatter’ or adverse possessor needs to be in actual occupation for a period of 10 years before he can apply for title. When considering unregistered land, the adverse possessor needs to be in actual possession for 12 years before he can apply for title.
It may be arguable whether the 2002 Act has fundamentally changed any area of property law, but most people would surely concede that the 2002 Act is an improvement on the 1925 Act because under Section 96 of the new act, the limitation period which applied before does not automatically extinguish the registered proprietor’s title. This now means that very specific criteria have to be met to make a successful claim of adverse possession when the land is registered, and this is now more unlikely to happen.
This development to curtail the number of adverse possession claims was also assisted in October 2000 when the Human Rights Act 199810 became law in this country, and under Article 1, a person now has a human right to peaceful enjoyment of their possessions and it guards against deprivation of possessions. The case of JA Pye (Oxford) Ltd v United Kingdom 11 demonstrates admirably why adverse possession is such an emotive area of property law as in this case the land in question was believed to be worth £21 million pounds sterling.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has now gone even further than the 2002 LRA by making it a criminal offence to squat in a residential building, although it only applies if they entered as a trespasser, not if they stay on at the end of a lease or a licence.
Another welcome advantage that the new 2002 LRA has over the 1925 LRA is that the new Act was intended to facilitate the introduction of e-conveyancing, short for electronic conveyancing. In property law, conveyancing is the transfer of legal title of property from one person to another or the granting of an encumbrance such as a mortgage. It should be noted here that if a person wants to create or transfer a legal estate or interest in land then they must use a deed, which is a document that has a legal bearing.
12 E-Conveyancing, whilst making the purchase of property easier, has not necessarily made it quicker, as the process can still take several months to complete and the changes to the 2002 LRA assume that e-conveyancing is now firmly in place. In October 2012, Malcolm Dawson, the Chief Land Registrar, said that 95% of all property searches and mortgage discharges are done electronically and that the system was still being worked upon to try and improve it.13 Conclusion
It has become abundantly clear that the 2002 LRA and the 1925 LRA were both sold as being revolutionary at the time of their introduction, and promised to modernise the feudal system of land law that had existed for centuries. The 2002 LRA can be clearly seen to be ‘transaction driven’ with its reform being shifted deliberately and methodically towards the goal of e-conveyancing, and it has introduced law reform in support of this goal.
14 The 2002 LRA has tried to shift the emphasis from registration of title to one of title by registration. Clearly, it can be seen that the government would like to see as little unregistered land as possible, and to see a system in place where it will be the fact of registration and registration alone that confers title. The 2002 Act has undoubtedly brought land and property law in to the modern age, even though it can be seen that the
Act shares much with its older brother from 1925. The changes to the rules regarding adverse possession, and the fact that it has now become harder to acquire title through adverse possession, are a change welcomed by most. The introduction of a formal land registry, one that allows the inspection of the register of title, is another sound concept that has brought benefits, as has the changes regarding overriding interests.
The 2002 LRA has also made it compulsory to register an estate in land when one of four events occurs, such as the transfer of a freehold estate. Failure to register means that a purchaser only has an equitable title to the land and this should encourage more people to register their land, and assist in the government’s goal of having as little unregistered land as possible. The 2002
Act has brought with it welcome changes, and brought land registration in to the modern age, although it has not represented a revolution in the sphere of property law. The law concerning land and property has changed fundamentally, the most welcome change being that surrounding adverse possession, but e-conveyancing must now catch up to bring the UK in to line with other EU countries, and land law must continue to evolve and adapt in an increasingly technical and modern society. Only when this has been achieved can the 2002 LRA claim to be truly revolutionary.