land charge registration reviewed

Editorial Committee of the Cambridge Law Journal

Land Charge Registration ReviewedAuthor(s): H. W. R. WadeSource: The Cambridge Law Journal, Vol. 14, No. 2 (Nov., 1956), pp. 216-234Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504401 .

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LAND CHARGE REGISTRATION REVIEWED

H, W. R. Wade

It is not often that an expert committee, asked to report on a

technical problem, have to admit defeat. But the Lord Chancellor's

Committee on Land Charges, in their recent Report,1 confess that

to rectify the 1925 machinery of registration, now that it is more than thirty years old, is a task beyond the wit of man. When so eminent a committee as that which sat under Mr. Justice Roxburgh reach such a conclusion, one may be sure that the law has thrown

up an exceptionally tough conundrum. And it is of general interest that such things can happen. If the inventions of one generation of legislators fail to justify themselves, the next generation should

be able to amend them, at any rate where the difficulties are purely technical and there are no questions of policy. But Lord Birken- head and Sir Benjamin Cherry appear to have succeeded in creating the conveyancing equivalent of a Franckenstein's monster, which with the passing years would become not only more dangerous but

also more difficult to kill.

The Report nevertheless contains plenty of valuable suggestions. In the first thirty years of the new system of registration many defects have come to light, and the Committee have attacked a

number of familiar conveyancing problems. Of outstanding interest are their conclusions that registration of restrictive covenants should be discontinued, that the so-called rule in 22e

Forsey and Hollebone's Contract2 should be abolished, and (more tentatively) that the reversal of the rule in Patman v. Harland 3

by section 44 (5) of the Law of Property Act, 1925, was a mistake. These by themselves are important as well as wise recommendations, but they by no means exhaust the list. Perhaps, then, this is an

opportune time for some discussion of the salient problems of land

charges and of the Committee's proposals. No one who has meditated on this subject will have failed to

notice its curious atmosphere of unreality, A great deal of

professional ingenuity has been spent on the legislation relating to

conveyancing, giving it the outward appearance of an exact science, subject to rigid principles and precisely detailed rules. In fact both

Cmd. 9825, July, 1956. Subsequently cited as " Beport.

[1927] 2 Ch. 379. (1881) 17 Ch.D. &53.

216



228 The Cambridge Law Journal [1956]

guess that very few people in such a position register their interests,

bearing in mind, as already noted, that solicitors commonly do not

register estate contracts. The anomaly is all the more glaring when

compared with the rules for land with registered title. Under the

Land Registration Act, 1925, all purchasers are bound by over-

riding interests, and overriding interests include " the rights of

every person in actual occupation of the land or in receipt of the

rents and profits thereof, save where inquiry is made of such person and the rights are not disclosed." 58 It is capricious to have two

such radically differing principles for protecting owners of charges who are in possession. The rule for registered land is much more

reasonable, for possession is the strongest possible title to security.

Unfortunately section 14 of the Law of Property Act, 1925, which

is a saving for interests of persons in possession, is too restricted

in its effect to be of help.59 A learned Lord Justice of Appeal has indeed expressed the opinion that it will avail against non-

registration,60 but in the face of the express terms of the legislation he would be a bold spirit indeed who would rely upon it. For

more timorous souls the law must be taken as it appears to stand

in the Acts, and as it has been expounded by a learned judge of the

Chancery Division/1

Re Forsey and Hollebone's Contract

The second subject of the Committee's terms of reference, the notorious passage in the judgment of Eve J. in Re Forsey and Hollebone's Contract,62 was discussed at some length in an earlier article.63 All that need be done here is to extend a welcome to the Committee's recommendations for reform. The difficulty, it may be remembered, is that Eve J. held that a purchaser is not entitled to object to a registered incumbrance which the vendor is unable to remove (such as a restrictive covenant) on the ground that,

having statutory notice of it, he is in the same position as a

interest had not been registrable) he would have lost nothing. In the iast case, furthermore, the sale was expressly made subject to the rights of the tenant, but Harman J. held that even this could not affect the penalty imposed by s. 13 (2) of the Land Charges Act, 1925. Thus all parties suffer except the one who is equitably responsible, viz. the purchaser who bought with clear notice of the tenant's rights. 58 Land Registration Act, 1925, s. 70 (1) {g). See Mornington Permanent Building Society v. Kenway [1953] Ch. 382.

59 s. 14 applies only to Part I of the Act, i.e., ss. 1-39, none of which are here material.

60 Denning L.J. in Bendall v. McWhirter [1952] 2 Q.B. 466 at 483; criticised by R. E. Megarry in (1952) 68 L.Q.R. at p. 385.

*' Harman J. in Coventry Permanent Economic Building Society v. Jones [1951] 1 All E.R. 901 at 903-904.

" [1927] 2 Ch. 379. " [1954] C.L.J. 89.



land charge registration reviewed

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