the land registration act 2002 - the show on the road

LEGISLATION

The Land Registration Act 2002 – the Show on the Road

Simon Gardner*

This article reviews the Land Registration Act 2002, taking advantage of the deeper perspectiveafforded by the intervening decade, and absorbing subsequent developments – and, in the case ofthe Act’s electronic conveyancing project, non-developments – that have also come to contributeto the picture. It suggests especially that while the Act’s central idea of conclusive, indeed‘constitutive’, registration can be beneficial, its deployment here has been problematic. Inparticular, the lapse of electronic conveyancing, and the possibility (resisted by the courts) thatconclusive registration can be procured by fraudsters, have diminished the control that partieshave over dispositions of their own title, to the detriment of their autonomy; and over-preoccupation with the central idea has resulted in a failure to think carefully enough aboutproblems to which it was never going to be the answer.

This article offers a review of the Land Registration Act 2002 (LRA 2002).1

The Act came into force in October 2003, so is a little over a decade old.Revisiting it now has the advantage not only of allowing us to view its provisionsfrom a helpful distance, but also of giving access to the new significance ithas acquired as a result of its operation in practice, and of subsequent develop-ments regarding a project for which it was only the launch-pad, ‘electronicconveyancing’.

THE ACT’S AIM: CONSTITUTIVE REGISTRATION

The 2002 Act replaced the Land Registration Act 1925 (LRA 1925). It followeddesign work by the Law Commission in conjunction with the Land Registry,the principal reports being published in 19982 and 2001.3 The Act is a substantialpiece of legislation (136 sections, 12 Schedules). Most of its provisions concernsmall details, and none of them is immediately recognisable as making a keynotestatement. One could easily see only the trees, either missing the wood ordoubting there even is one. If one were to guess at a possible theme, it wouldprobably be ‘to make arrangements for registering rights in land’, or something

*Hanbury Fellow and Tutor in Law, Lincoln College, Oxford; Professor of Law, University of Oxford.I am indebted to Amy Goymour and George Gretton, and to the anonymous referees.

1 See E. Cooke, ‘The Land Registration Bill 2001’ [2002] Conv 11; M. Dixon, ‘The Reform ofProperty Law and the Land Registration Act 2002: A Risk Assessment’ [2003] Conv 136.

2 Law Commission, Land Registration for the Twenty-First Century – A Consultative Document Law ComNo 254 (London: TSO, 1998).

3 Law Commission, Land Registration for the Twenty-First Century – A Conveyancing Revolution LawCom No 271 (London: TSO, 2001).

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of that kind. The Act’s short title, its Preamble,4 and its opening section5 allsuggest this, and one could continue a long way under the same impression.

However, the impression would be inaccurate. There is more to the Act, orat least its aspirations, than this. The Explanatory Notes, having referred to thedesign work, continue:

As work proceeded an additional factor had to be considered. The Land Registry hasnow automated many of its functions, which can now be accessed on line. It becameclear during the Commission’s work that there was wide support within theproperty industry and from many legal practitioners for the introduction of a systemof dealing with land electronically. The Law Commission and Land Registrytherefore recommend that the new legislation should aim to create the necessarylegal framework in which all registered conveyancing can be conducted electroni-cally. The Act establishes such a system.

So despite initial appearances, the establishment of registration arrangements wasnot the end in itself, but a means to deliver the Act’s real key aspiration, namelythat all conveyancing would take place via a prescribed form of electronictransaction.

And this form of transaction was, moreover, to be the electronic manipulationof the register itself. We had moved from ‘registration of title’ to ‘title byregistration’;6 ‘[i]t will be the fact of registration and registration alone thatconfers title.’7 This was presented as a change from the position before 2002. (Sothe key Law Commission report was titled: Land Registration for the Twenty-FirstCentury – A Conveyancing Revolution.8) Previously, registration was largely seen asan appendage to conveyancing: dispositions were first effected in traditionalways, then registered. Now, dispositions were to be effected by their (electronic)registration.

This new vision of registration may be termed ‘constitutive’. It contrasts mostextremely with a regime where registering or failure to register makes nodifference to an interest’s validity or power; registration is merely a facility. It alsocontrasts, but less extremely, with a regime where an interest’s validity does notdepend on its registration, but its power does, notably where without registrationan interest will not bind (some or all) disponees, though it will continue to bindits grantor. Likewise with a regime where registration is necessary even tovalidity, but does not guarantee it, that is where an interest’s validity or powerwill be compromised not only by non-registration, but potentially by other

4 ‘An Act to make provision about land registration; and for connected purposes.’5 ‘1 Register of title

(1) There is to continue to be a register of title kept by the registrar.(2) Rules may make provision about how the register is to be kept and may, in particular, make

provision about –(a) the information to be included in the register,(b) the form in which information included in the register is to be kept, and(c) the arrangement of that information.’

6 n 2 above, para 10.43.7 n 3 above, para 1.10.8 n 3 above.


© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.764 (2014) 77(5) MLR 763–779

factors too. In fact, one could label regimes of these two latter kinds as ‘consti-tutive’ without abuse of language, to capture the fact that under them, registeringan interest certainly contributes to its legal efficacy. But there is a differencebetween all such regimes and that to which the 2002 Act aspires, where aninterest’s being valid and having power is actually co-terminous with its beingregistered. In this article, the term ‘constitutive’ is reserved for the latter case.

The Act was given a number of features calculated to promote the delivery ofits ultimately electronic constitutive registration project. Central among themwere provisions designating certain transactions as ‘registrable dispositions’; thatis, stipulating for them to be effected exclusively by registration.9 The latterprovisions were not new in themselves, but the list of transactions subjected tothem was extended;10 and they were now complemented by the provisionsneeded to ensure that in future, such registration could and would occurelectronically.11

New rules regarding adverse possession were also introduced, largely immun-ising a registered title against loss under this doctrine.12 The assumption seems tobe that as well as having to be constituted by registration, an interest cannot bedeconstituted or reconstituted – extinguished or revised – otherwise than by afresh registration event: so not, for example, by an event such as adversepossession.

Other provisions were aimed at boosting the conclusiveness of the register.Above all, section 58 declares that a person who is registered as the proprietor ofan estate is to be deemed to have that estate, regardless of whether this wouldotherwise have been regarded as the case. Such provisions do not directly deliverconstitutive registration. One can have a conclusive but non-constitutive regime:that is, one in which dispositions are not as such effected by registration, but oncethe register makes a statement about the position, that statement is determinative.But one cannot have a constitutive regime, such as the Act set out to provide,without conclusiveness. Only if registration is determinative can it be said that adisposition is ‘effected by’ registration.

There was also a reduction in the range of circumstances in which an interestcan bind a disponee without registration. Gone is the previous rule whereby,regardless of registration, an interest would bind a disponee who knew of it.13

And the 2002 Act’s list of overriding interests omitted some that had featuredunder the 1925 Act, such as equitable easements;14 impliedly granted legal

9 LRA 2002, s 27.10 Notably, registration had previously been required only for leases of over 21 years (LRA 1925, ss

8(1)(a) and 19(2)(a)), but the new rule extended to leases of over 7 years (LRA 2002, s 27(2)(b)(i)).Provision was also made for the qualifying term to be further reduced: LRA 2002, s 118(1)(d).

11 LRA 2002, Part 8.12 LRA 2002, Part 9 and Sched 6.13 LRA 1925, ss 20(1) and 59(6), see Peffer v Rigg [1977] 1 WLR 285; cf LRA 2002, s 29. A fragment

of the rule remains under Sched 3 para 2(c)(ii), however. By this, an interest belonging to a personin actual occupation of the relevant land counts as overriding notwithstanding that that occupationis not discoverable on a reasonably careful inspection of the land, if the right is known to thedisponee.

14 LRA 1925, s 70(1)(a), see Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204; cf LRA 2002,Sched 3 para 3.

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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.765(2014) 77(5) MLR 763–779

easements unless known to the disponee, or obvious on a reasonably carefulinspection of the land in question, or exercised within the previous year;15 theinterests of a person receiving the rents and profits of the land to which theyrelated;16 and the interests of a person in actual occupation of the land to whichthey related, where this occupation would not have been obvious on a reason-ably careful inspection of the land at the time of the disposition in question,unless the disponee actually knew of them.17 The 2002 Act also marked fivefurther, rather esoteric, interests, that it had originally designated as overriding,for deletion 10 years after its date of taking effect;18 so these disappeared in theautumn of 2013.

THE ACT’S NON-DELIVERY OF CONSTITUTIVE REGISTRATION

For all these measures calculated to promote it, constitutive registration is notfully delivered by the Act. There are a number of ways in which an interest canexist, and affect land, without having been brought into being by registration,and in some cases without appearing on the register at all.

First, not all interests require registration for their very existence. The Actcontinues to support the classes of interest usually referred to, although it doesnot use these pre-2002 labels, as ‘minor interests’ and ‘overriding interests’.These are interests capable of affecting a disponee for valuable consideration19

either because made the subject of a notice on the register,20 or, even withoutthis, because identified by the Act as operating thus.21 The interests in questioncomprise all interests (other than those now requiring to be created by registra-tion) recognised as such in unregistered land, and arising as they would arise inthat context; together with rights that the 2002 Act ‘promotes’ to this categoryinsofar as they relate to registered land: rights of pre-emption, mere equities, andequities by estoppel.22 Moreover, all such interests can affect a disponee other-wise than for valuable consideration, even if they are not registered as a minorinterest, nor qualify as an overriding interest: that is, simply because they exist atall.23

Likewise, it remains possible in some, albeit limited, circumstances to acquireland (more precisely, the right to have oneself constituted as proprietor of land)

15 LRA 1925, s 70(1)(a); cf LRA 2002, Sched 3 para 3. However, by LRA 2002, Sched 12 para 9,if an easement came into existence before October 2003 and was overriding under the 1925 Act– which may mean every pre-2003 easement, depending on how one reads the Celsteel decision,ibid – its overriding status is preserved.

16 LRA 1925, s 70(1)(g); cf LRA 2002, Sched 3 para 2.17 LRA 1925, s 70(1)(g), see Williams & Glyn’s Bank Ltd v Boland [1981] AC 487; cf LRA 2002,

Sched 3 para 2.18 LRA 2002, s 117(1).19 LRA 2002, ss 29 and 30.20 LRA 2002, ss 32 and 33.21 LRA 2002, Sched 3.22 LRA 2002, ss 115 and 116. Though equities by estoppel are probably interests in unregistered land

too.23 LRA 2002, ss 29 and 30.



by adverse possession. These circumstances are defined by a combination ofunregistered land rules and provisions of the 2002 Act.24

And the state of the register is always liable to amendment by ‘alteration’.25

Indeed, the Act denominates some instances of alteration as ‘rectification’.26 Asa word meaning ‘making right’ or ‘correction’, this is effectively a statement thatthe register can be wrong. The Act also announces, as one of the grounds foralteration, ‘correcting a mistake’.27 Such language is clearly at odds – at quitefundamental odds – with the idea that the register is conclusive, without whichit cannot be constitutive.

Finally, though the point is generally overlooked, we find departure from thatidea even in authoritative statements regarding the very aim of the Act. It wascommon to see the 1925 Act described as establishing, in the register, a ‘mirror’ oftitle.28 An image in a mirror, of course, is not the object in question itself. As wehave seen, the 2002 Act aspired to make the content of the register not an imageof title, but the very title. Yet the ‘mirror’ figure continued to be used regardingit, including in the Act’s Explanatory Notes: ‘the register should be a complete andaccurate reflection of the state of the title of the land at any given time.’29

AN ALTERNATIVE READING OF ‘TITLE BY REGISTRATION’?

It may be tempting to account for all such material by focusing on the claim thatthe Act is to deliver ‘title by registration’, and reading those words in a differentway. In this reading, the word ‘registration’ refers not (only) to the register itself,as in the vision described earlier, but to something like ‘the Land RegistrationAct regime as a whole’. That is, title is established by reference to whateversource the Act indicates for the purpose. As matters currently stand, this meansa blend of information contained in the register, and information not containedin the register, but for which the regime provides, and so authenticates in someother way: the material just reviewed. It is a problem for this alternativeunderstanding, however, that the Act does not always define such off-registersources of information very closely. Such laxity makes it harder sensibly todescribe the result as ‘title by registration’. It is especially visible in respect ofoverriding interests and alteration.

The circumstances in which an interest will count as overriding are principallydefined in Schedule 3. But the definitions leave significant areas of latitude.30 Thisis especially true of provisions depending on whether some fact would have been‘obvious on a reasonably careful inspection of the land’,31 and of the important

24 LRA 2002, Part 9 and Sched 6.25 LRA 2002, s 65 and Sched 4.26 LRA 2002, Sched 4 para 1.27 LRA 2002, Sched 4 paras 2(a) and 5(a).28 See eg J. Stewart-Wallace, Introduction to the Principles of Land Registration (London: Stevens & Sons,

1937) 32. Stewart-Wallace was the Chief Land Registrar.29 Law Commission, n 3 above, para 1.5 uses the same language.30 See further N. Jackson, ‘Title by Registration and Concealed Overriding Interests: The Cause and

Effect of Antipathy to Documentary Proof’ (2003) 119 LQR 660.31 LRA 2002, Sched 3 paras 2(c)(i) and 3(1)(b).

Simon Gardner


reference to ‘actual occupation’.32 These provisions can, in fact necessarily must,introduce to the registration regime influences outside the Act’s control.

The position in respect of alteration is, if anything, still less controlled. Inparticular, the Act provides that the register can be altered by the Registry or thecourt in the cause of ‘correcting a mistake’.33 But it neither defines ‘mistake’, noreven offers any steer, to the extent that the Court of Appeal has taken the word’smeaning to be as yet quite unsettled: ‘The scope of the phrase “correcting amistake” is no doubt something that requires to be explored and discussed anddeveloped in the course of future litigation’.34 As will be seen below, a numberof decisions have in fact taken a ‘mistake’ to denote, apparently, any situationwhere the register’s statement of title differs from the position as it would havebeen in unregistered land. The point for present purposes, however, is that thematter is certainly not tightly regulated by the Act itself.

In short: instead of meaning that title is established purely by reference to theregister, ‘title by registration’ could mean that title consists in a set of informationwider than this, but nonetheless indicated by the Act. Indeed, if the phrase is todescribe the registration regime as the Act actually constructs it, it must meanthis, for as we have seen, that regime certainly does make reference to such awider set of information. To say that this set of information is ‘indicated by theAct’, however, would be an overstatement. As we have seen, in importantrespects the Act substantively leaves its content and even its whereabouts at large.So it is a stretch to see ‘title by registration’ as aptly describing the Act’s regimeeven in this sense.

But even if the words ‘title by registration’ could be taken in this way, thisobviously does not preclude the other understanding of them, with which webegan, that the register itself is the sole source of authentic information regardingtitle, and moreover (in a constitutive vision) that title can be manipulated onlyby registration. It is clear that the 2002 Act adopts this latter understanding. Thepossibility of using the same words to describe both it and the position discussedin the present section is a fluke. If one recalls that the Act’s dominant vision is‘constitutive (necessarily including conclusive) registration’, the differentiationbetween the two re-emerges. There is no sensible way to use ‘constitutive(necessarily including conclusive) registration’ to describe the establishment oftitle in any off-register ways, let alone those which we have just identified insome of the Act’s actual provisions.

IMPORTANT SUBSEQUENT DEVELOPMENTS

There have been two especially important developments since the Act came intoforce. The electronic conveyancing project has been discontinued; and thecase-law has trended, albeit unevenly, away from treating the register as

32 LRA 2002, Sched 3 para 2. On this, see the striking decision in Link Lending Ltd v Bustard [2010]EWCA Civ 424; cf B. Bogusz, ‘The Relevance of “Intentions and Wishes” to Determine ActualOccupation: a Sea Change in Judicial Thinking?’ [2014] Conv 27.

33 LRA 2002, Sched 4 paras 2(1)(a) and 5(a).34 Barclays Bank Plc v Guy [2008] EWCA Civ 452; [2008] 2 EGLR 74 at [20]–[23].



conclusive. Both developments undermine the constitutive registration project.This section reviews them in detail.

The discontinuance of e-conveyancing

In 2011, in the middle of the period of international financial difficulty thatbegan around 2007, the Registry announced that ‘until the return of a healthierfinancial climate and a more active property and mortgage market’, the elec-tronic conveyancing – e-conveyancing – project would not be pursued beyondthe limited scope it had had up to that time. In particular, it would not be appliedto actual transfers of property.35

The reason given was a discovery that, despite the Explanatory Notes’ refer-ence to ‘wide support within the property industry and from many legal prac-titioners for the introduction of a system of dealing with land electronically’, fewconveyancers now intended to conduct their business electronically. It wouldhave been possible to introduce e-conveyancing as a mandatory regime,36 but theLand Registry had envisaged a period during which it would be optional – andso, it turned out, would have been largely ignored. ‘A more active property andmortgage market’ may now be returning, albeit perhaps not ‘a healthier financialclimate’, so the project’s reactivation may be imaginable. But the damper put onit by the past few years’ economic reverses and probably also, it seems fair to add,by professional conservatism and by an acknowledgment of the poor record oflarge public sector IT projects, will have been substantial. As with any onlineresource, there must also be concerns over security (in this context, especiallyagainst cyber-fraud), but of course these concerns exist already, in that it must bepossible in principle to hack into the Registry computers, and I lack the expertiseto say whether e-conveyancing would aggravate them. All in all, then, it isprobably realistic not to expect a rapid revival, unless current moves to privatisethe Land Registry37 suggest otherwise, so as to assist the turning of a profit.

This lapse in respect of e-conveyancing is not fatal to the Act’s very func-tioning. The Act is able to run on the basis of traditional methods of creating anddealing with interests, and has of course been in force for a decade largely on thisbasis. It is true that e-conveyancing would have brought one significant func-tional improvement, in respect of the ‘registration gap’.38 This is the delay thatcurrently exists between, on the one hand, the traditional effectuation of a

35 Land Registry, Report on Responses to E-Conveyancing Secondary Legislation Part 3 (2011) para 5.2 athttp://www.landregistry.gov.uk/__data/assets/pdf_file/0006/3102/econveyancing_cons.pdf (lastaccessed 22 October 2013).

36 LRA 2002, s 93.37 Land Registry, Land Registry: Wider Powers and Local Land Charges (2014) at http://

consultations.landregistry.gov.uk/consult.ti/LLC1/consultationHome; Department of BusinessInnovation and Skills, Introduction of a Land Registry Service Delivery Company (2014) at https://www.gov.uk/government/consultations/land-registry-new-service-delivery-company (both lastaccessed 9 June 2014). The Government has now decided not to privatise the Land Registry(see at http://www.parliament.uk/documents/commons-vote-office/July%202014/14%20July%20214/2BIS-LandRegistry.pdf, last accessed 17 July 2017), but potentially only temporarily, sothe relevant points made above retain their significance.’

38 Law Commission, n 3 above, paras 1.7 and 9.62.

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http://www.landregistry.gov.uk/__data/assets/pdf_file/0006/3102/econveyancing_cons.pdf

http://consultations.landregistry.gov.uk/consult.ti/LLC1/consultationHome

http://consultations.landregistry.gov.uk/consult.ti/LLC1/consultationHome

https://www.gov.uk/government/consultations/land-registry-new-service-delivery-company

https://www.gov.uk/government/consultations/land-registry-new-service-delivery-company

http://www.parliament.uk/documents/commons-vote-office/July%202014/14%20July%20214/2BIS-LandRegistry.pdf

http://www.parliament.uk/documents/commons-vote-office/July%202014/14%20July%20214/2BIS-LandRegistry.pdf

disposition and, on the other hand, the Registry’s compliance with the ensuingrequest for its registration. The concern is that, as the Act is configured,39 a newadverse interest can arise during this delay – over which the parties themselveshave no control – and so bind the disponee, as being extant at the time ofregistration. By making the effectuation of the disposition and its registration thesame event, e-conveyancing would have removed this delay and the concern towhich it gives rise. But while the status quo is certainly imperfect in theory, thereare no signs that it causes much upset in practice. One would certainly expect toencounter forensic fall-out if it did.

But there may be another impact of the lapse in respect of e-conveyancing,in that it may be seen as diminishing the autonomy of the parties to dispositions.The suggestion that the law should respect autonomy – people’s interest in havingcontrol over their own lives – is a familiar one. In the present contextthis implies that parties should have control of their own dispositions.E-conveyancing would have supported this. Under it, the constitutive act ofregistration would not simply have been brought about electronically: it wouldhave been brought about by the (electronic) act of the parties themselves.40 Soe-conveyancing would have meant the parties to an adjustment of title themselveshaving control over the registration event that, in law, will effect – constitute – it.

Without e-conveyancing, parties do not have the same control over theregistration events that constitutively adjust their title. Instead, these events arebrought about by the Registry staff. This is the reason for viewing the lapse ofe-conveyancing as diminishing the parties’ autonomy. However, the argumentis less clear-cut than it may seem. With e-conveyancing, registration eventswould not normally have been brought about by the parties in person: rather bytheir lawyers, following their instructions. Without e-conveyancing, the partiesinstruct their lawyers, who instruct the Registry staff, who bring about theevents. There appears no reason to think that the Registry staff are more oftendelinquent in following their instructions than the parties’ lawyers themselves, sothe insertion of this additional link in the chain probably makes little practicaldifference (other than as a source of delay, as already discussed).

On the other hand, the argument does not on that account disappearaltogether. There remain a number of possibly significant contrasts betweenthe law’s constitutive registration regime as it would have been withe-conveyancing, and as it is without it. If only in a limited sense, the parties selecttheir own lawyers, whereas they by no means select the Registry officer whodeals with their matter. They have immediate contact with their lawyers, but notwith ‘their’ Registry official. Their lawyers work for them, ‘their’ Registryofficial for the government (or indeed, in future, for such private concern as mayhold the contract for Registry services). It is surely fair to say that in none of these

39 LRA 2002, ss 28–30.40 Curiously, there is little sign that the Law Commission, in its design work for the Act, appreciated

that its e-conveyancing proposal had this fundamental importance; despite declaring it ‘the mostimportant single feature of’ the whole exercise, the statements of the case for it contain nothingalong these or any equivalent lines (n 3 above, paras 1.12 and 2.41). It is even rumoured that theproposal was introduced only so as to make the overall project appear sexier, and so raise its chancesof attracting political interest and resources.



respects is the present regime, without e-conveyancing, intolerable. Certainly,their significance is less practical (normally) than symbolic. But in at least somedegree they represent ways in which the lapse of e-conveyancing leaves theregime less supportive of autonomy than it would otherwise have been, and assuch render this lapse regrettable.

Judicial treatment of conclusiveness

As noted earlier, if registration is to be constitutive, it must be conclusive; and amajor icon of conclusivity under the Act is section 58, to the effect that a personregistered as the proprietor of an estate is deemed to have that estate, irrespectiveof whether this would otherwise have been seen as the case. However, while thisprovision reads as though absolute, it is subject, by section 64, to the possibilityof an alteration of the register, in the manner also noted earlier. Of course, againas already noted, the very possibility of alteration disrupts the register’s conclu-siveness. Our present interest, however, is in these provisions’ treatment insubsequent case-law, to see whether this treatment takes the law towards or awayfrom the ideal of a conclusive register.

In short, the answer is certainly not ‘towards’, and may very arguably be ‘awayfrom’. Insofar as there is a range of possible interpretations of the provisions –some treating the register as more conclusive, others as less conclusive – the caseshave by no means preponderantly favoured the former, and may be thought tohave generally preferred the latter.

One important piece of evidence lies in the decision of the Court of Appealin Baxter v Mannion,41 regarding alteration. Land, originally registered in thename of Mr Mannion, was re-registered to Mr Baxter after what the Registrytook to be qualifying adverse possession on the part of the latter. When MrMannion pointed out that Mr Baxter had never in fact adversely possessed theland at all, the court ordered alteration so as to restore it to Mr Mannion, on thebasis that the entry in favour of Mr Baxter had been a ‘mistake’.

As already noted, ‘correcting a mistake’ is one of the bases for alteration,42 but‘mistake’ remains undefined. Without attempting to provide a general defini-tion, the court decided that there was a ‘mistake’ here, where a ‘statutorycondition which is a prerequisite for registration is shown not to have beensatisfied.’43 By way of broader treatment, it framed the question as ‘Does themachinery of the Land Registration Act 2002 allow a party to take someoneelse’s land by operation of a bureaucratic machinery which trumps reality?’,44 andanswered it in the negative,45 adding that ‘mistake’ is not confined to ‘mistakethrough some official error in the course of examination of the application [for

41 [2011] EWCA Civ 120; [2011] 1 WLR 1594.42 LRA 2002, Sched 4 paras 2(1)(a) and 5(a).43 n 41 above at [14], referring to [2010] EWHC 573 (Ch); [2010] 1 WLR 1965 at [39].44 n 41 above at [1].45 ibid at [18]–[36]. See also at [42]: ‘Mere failure to operate bureaucratic machinery is as thistledown

to Mr Mannion losing his land and Mr Baxter getting it when he had never been in adversepossession.’

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registration]’,46 and that it has no ‘special meaning’.47 This treatment is consistentonly with an unimpressed attitude towards ‘title by registration’.

Similarly Fitzwilliam v Richall Holdings Services Ltd,48 regarding section 58 itself.This is one of a number of ‘theft of land’ cases. Mr Fitzwilliam’s registered titlewas transferred to Richall, without Mr Fitzwilliam’s knowledge, by the inter-vention of a fraudster, using what appeared to be a power of attorney given tohim by Mr Fitzwilliam, but which he had forged. Mr Fitzwilliam sought thereturn of his title, and succeeded. It was argued that by section 58, there-registration to Richall was fully conclusive, save via alteration. The courtrejected the argument. Section 58(1) provides: ‘If, on the entry of a person in theregister as the proprietor of a legal estate, the legal estate would not otherwise bevested in him, it shall be deemed to be vested in him as a result of theregistration.’ This certainly meant that Mr Fitzwilliam’s title was effectuallytransferred to Richall, regardless of Mr Fitzwilliam’s lack of intention in thisregard. But under the general law, Richall now held the title on trust for MrFitzwilliam,49 and section 58 did not counter this.

Since the section’s wording seems to confine its impact to the legal estate, thisconclusion may appear unsurprising. But it has been contended that the sectionshould be treated as establishing beneficial title, either because of a more sophis-ticated reading of the section’s own terms, or because of an idea that the Actshould be seen as self-contained – for present purposes, that the only vehicle forredefining title should be the Act’s own provision for alteration (unfocusedthough we have seen the latter to be), leaving no space for inputs outside itsschema, such as what is called ‘the trust solution’.50 The court’s decision,adopting ‘the trust solution’, involved a rejection of this position; put positively,a statement that, despite section 58’s proclamation of conclusiveness, ‘registered’title is quite pervious to external inputs.

These two decisions are highlighted here. Conclusiveness has also been atstake in others. These do not all tell the same story. But reviewing a number ofthem, Amy Goymour51 has concluded that overall, ‘the judiciary is steadilyderailing . . . the notion that the LRA 2002 operates a system of “title byregistration”.’52

46 ibid at [25].47 ibid at [33].48 [2013] EWHC 86 (Ch); [2013] 1 P & CR 19.49 On this, following Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] EWCA Civ 151; [2002]

Ch 216.50 See especially C. Harpum, ‘Registered Land – A Law Unto Itself?’ in J. Getzler (ed), Rationalizing

Property, Equity and Trusts (London: LexisNexis Butterworths, 2003) ch 9. For further considera-tion, see E. Cooke, ‘The Register’s Guarantee of Title’ [2013] Conv 344; M. Dixon, ‘A Not soConclusive Title Register?’ (2013) 129 LQR 320; E. Lees, ‘Richall Holdings v Fitzwilliam: Malory vCheshire Homes and the LRA 2002’ (2013) 76 MLR 924; cf S. Gardner, ‘Alteration of the register:an alternative view’ [2013] Conv 530. Much of this literature is aimed at deciding, and urging, howsection 58 should be read, and whether the ‘trust solution’ is permissible. I am not concerned herewith that issue; my concern is rather to observe what is happening about conclusiveness in practice,and to reflect on the considerations of principle in play.

51 A. Goymour, ‘Mistaken Registrations of Land’ [2013] CLJ 617, 646–647.52 Likewise the Scottish legislature. The Land Registration (Scotland) Act 1979, s 3 provided for a

conclusive register, but contrast this with the Land Registration etc (Scotland) Act 2012, s 65



Ms Goymour’s conclusion is reinforced by a further, more recent decision. InWalker v Burton,53 the finding of a ‘mistake’, and so the availability of alteration,was once again predicated upon lack of entitlement to the rights that had beenregistered, judged by reference to the law outside the registration regime. Theregister was nevertheless left unaltered in respect of one of the two rights inquestion. But this was on the statutory ground54 that the right’s proprietors werein possession of the relevant land, and that (in the triple-negative terms requiredby the Act) it would not have been unjust not to make the alteration, since theproprietors had cleaned the land up. Which may be fair enough, but is a far cryfrom saying that the right was unassailable simply because it was registered.55

To put this material in perspective: as explained earlier, a conclusive registra-tion regime logically has no space for the idea that the register might be wrong.This is fine, in fact positively commendable, if the registration is constitutivelyeffected by the properly-entitled parties (as would have been the case withe-conveyancing), and only by them.56 By their registration, the parties fix theirown position, and no-one else can break in on it; their autonomy is supported.But it is otherwise – their autonomy is diminished – if registration is or can beeffected by others. As we saw in the previous section, this is in a limited sense thecase when registration is left to the Registry rather than remaining in the parties’own hands, where e-conveyancing would have placed it. It is very much morethe case if, as explored in this section, the registration is left to Registry and canbe procured there by a fraudster.

It is our, and the courts’, instinctive reluctance to accept such an erosion ofautonomy that generates our, and the courts’, instinctive hesitation to agree thatregistration can be fully conclusive. The logically impossible ‘space’ for alterationand the like is really the gap between the present configuration of the registrationregime – conclusive but, without e-conveyancing, not constitutive by theproper parties – and our enduring liberal expectations of it.57

(expected to come into force in autumn 2014). See Scottish Law Commission, Land Registration,Scot Law Com No 222 (Edinburgh: TSO, 2010) Part 13. Of course, the new position issignificantly nuanced, so that under particular circumstances it behaves in the same way as a fullyconstitutive regime: see Parts 8 and 9 of the 2012 Act; paras 13.28 and 13.36, and Parts 17–25, ofthe Commission report.

53 [2013] EWCA Civ 1228; [2014] 1 P & CR 9 especially at [17] and [91]; see M. Dixon, ‘The Past,the Present, and the Future of Land Registration’ [2013] Conv 463. Another more recent decision,Blemain Finance Ltd v Goulding [2013] EWCA Civ 1630, does treat the register as conclusive, butcompared with the decisions discussed in the text, its facts are less cogent of the contrary view.

54 LRA 2002, Sched 4 para 6(2).55 The decisions discussed here all concern the question of who is entitled to an interest. The idea of

registration being constitutive may also impact on the construction of an interest. See Cherry TreeInvestments Ltd v Landmain Ltd [2012] EWCA Civ 736; [2013] Ch 305, which is sympathetic to theideology, but only by a majority.

56 This is a slight overstatement. The parties’ acts of registration could be affected by their own slips,and even non est factum, and would deserve correction as such, being the registered counterpart ofthe possibilities of declaring an instrument void or cancelling or rectifying it.

57 M. Dixon, ‘Editor’s Notebook – Something for the New Year?’ [2014] Conv 1, 2 depicts thisconfrontation between conclusive registration as per the Act on the one hand, and respect forautonomy on the other, as ‘a policy question that . . . has already been settled’ – scirelicet (I assume)in favour of the former. This seems to under-appreciate what is at stake.

Simon Gardner


THE IMPERFECTION OF PERFECTCONSTITUTIVE REGISTRATION

Imagine a world featuring perfect constitutive registration; a world, such as wasthe vision for the Act, where all title is constituted by, and only by, registrationeffected by properly-entitled parties. Such a world would still have a significantweakness. It would be calculated to serve only some, not all, of the interests inland actually maintained by English law.

Sometimes an interest in land can arise without the person entitled to itknowing of it, certainly with any clarity. Obviously, this is not the case where,for instance, someone buys a freehold or a bank takes a charge. But it occurscommonly enough, as for example when the right arises by proprietary estoppelor prescription, or is a constructive trust in respect of a family home arising underJones v Kernott.58

It could be objected that such doctrines, in some way, all require the acquirerto believe in having or getting a right. This is true, but not true enough to knockout the argument. The demand is not always exigent; certainly in proprietaryestoppel, the belief may be quite vague in its content.59 The right believed inneed not equate to that actually acquired: especially in proprietary estoppel, thereis a large discretion as to relief, and indeed it has been said that the right believedin is essentially not the measure.60 Moreover, there is reason to think that inpractice, the demand for such a belief is commonly disregarded.61 So it seems fairto continue to say that there are significant cases in which an interest can arisewithout its acquirer knowing of it, in any very substantial meaning of that word.

Then too, people acquiring such interests will not normally know of any needor facility to register them. Nor can we change the picture by saying that peoplewho do not personally know they have such interests, or that they can or shouldregister them, nonetheless have reasonably accessible means of discovering thesethings, notably the services of a lawyer. Given the state of the knowledge theyhave, they have no reason to think of consulting one.

For these reasons, there are significant instances in which persons havinginterests in land will not register these, and cannot reasonably be expected to doso. This does not have to be the case. It is the result of English law’s havingchosen to support property interests arising in such ways at all, rather than solelyin ways where the acquirer will know of the interest and of its registrability, orcertainly can be advised about these things. But the wider position, having been

58 [2011] UKSC 53; [2012] 1 AC 776.59 A belief in a precise type of interest was momentarily required by Cobbe v Yeoman’s Row

Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 at [18]–[23]. But Thorner v Major [2009]UKHL 18; [2009] 1 WLR 776 at [90]–[99] restored the previous, laxer, demand for a belief merelyin some kind of right: Ramsden v Dyson (1866) LR 1 HL 129, 171; Plimmer v Mayor etc of Wellington(1884) 9 App Cas 699, 713.

60 Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 8 at [45]–[51], [56].61 For proprietary estoppel, see S. Gardner with E. MacKenzie, An Introduction to Land Law (Oxford:

Hart Publishing, 3rd ed, 2012) 131–132; J. Mee, ‘Proprietary Estoppel and Inheritance: Enough isEnough?’ [2013] Conv 280. For family homes, see Gardner with MacKenzie, ibid, 173–174.



adopted, must be taken seriously. This means, for present purposes, that theremust be respect for its implications regarding the Act’s constitutive registrationproject.62

This in turn means stopping the project short of such interests. To dootherwise – to say they can come into existence only by being registered – wouldbe largely to negate their existence, and so not to take seriously the law’s choiceto maintain them in the first place. A perfectly constitutive registration regimewould thus be, in a wider sense, imperfect.

THE ACT’S NON-CONSTITUTIVE OFFER

It is reassuring, therefore, that the 2002 Act does support the interests justdiscussed, outside its constitutive registration project. It allows them to arisewithout registration (that is, their creation is not a ‘registrable disposition’),63 andthen in principle to operate as overriding interests, binding disponees for valuewithout registration even by notice.64 The question is whether this support issatisfactory in its details. The short answer is no. The problem lies with the Act’sprovision for such rights to operate as overriding interests.

In designing the Act, the Law Commission decided to adopt this principle:

interests should only have overriding status where protection against buyers [is]needed, but where it [is] neither reasonable to expect nor sensible to require anyentry on the register.65

The principle is appropriate in the sense that it certainly points overriding statusat the type of rights that is the subject of our concern: the second half of thesentence describes them fairly. The difficulty is that it sets only a necessary,qualifying, condition for overriding status. Whether a given right actuallyemerges as overriding depends on further considerations. This appears both fromits own wording (‘. . . should only have overriding status where . . .’), and fromthe way the Act is in fact constructed. For not all rights that fit the description(‘neither reasonable to expect nor sensible to require any entry on the register’)are overriding.

To see this, consider the rule controlling when an easement can be overrid-ing.66 Some easements arise by informal means, and where this is the case theirowner may very well not know of them, or their registrability; nor be so placed

62 See Williams & Glyn’s Bank Ltd v Boland n 17 above, 509–510, where Lord Scarman explains, injust such terms, the importance of ensuring that the registration rules support interests in familyhomes. Taken as a whole, however, the law is less sensitive to the point than it might be: M. Dixon,‘Equitable Co-Ownership: Proprietary Rights in Name Only?’ in E. Cooke (ed), Modern Studies inProperty Law, Volume 4 (Oxford: Hart Publishing, 2007) ch 2.

63 LRA 2002, s 27.64 LRA 2002, ss 29 and 30.65 n 3 above, para 8.6, reiterating n 2 above, para 4.17.66 LRA 2002, Sched 3 para 3. Expressly granted legal easements are excluded from overriding status

by definition. They count as registrable dispositions, ie must be registered in order to exist at all: s27(2)(d).

Simon Gardner


as to discover these, as discussed above. It is then ‘neither reasonable to expectnor sensible to require’ their registration. But the rule accords overriding statusto only a subset of such easements. First, it excludes equitable easements alto-gether. So while legal easements of this type, meaning those arising by impliedgrant or prescription, can be overriding, equitable easements arising by equallyinformal methods – by implication into an estate contract or agreement for alease, or by proprietary estoppel – cannot. And second, the rule allows even sucha legal easement to override only where it is known to the disponee, or wouldhave been obvious on a reasonably careful inspection, or has been exercised inthe year up to the disposition.

Consider too the rule controlling when an interest can be overriding on thebasis that its owner is in actual occupation of the land.67 This rule does notexpressly limit such interests to those whose registration cannot be reasonablyexpected nor sensibly required in the first place. But it is likely to have sucha shape in practice: owners conscious of their interests will normally registerthem anyway, out of self-interest, and perhaps those who do not but are inactual occupation can fairly consider themselves safe without registration, pre-cisely on account of their occupation.68 The present point, however, is thatthe rule then selects further. It accords overriding status only to interestsbelonging to a person whose occupation would have been obvious on a rea-sonably careful inspection of the land (unless they were actually known to thedisponee). This restriction, like those in respect of easements, has no connec-tion with the question whether registration can be reasonably expected andsensibly required.

So how are such restrictions, within the ‘neither reasonable to expect norsensible to require’ category, to be understood? I have suggested elsewhere thatthey may be seen as ‘calculated to ensure that [such] rights achieve overridingstatus only if they are readily discoverable by a disponee’ – this being a defensibleway to compromise between the desirability (as explained above) of supportingsuch rights and, on the other hand, the interest of disponees in being able todisregard them.69 Informal legal easements known to the disponee, or obvious ona reasonably careful inspection, have this characteristic. So do the rights of aperson in actual occupation, where that occupation would have been obvious ona reasonably careful inspection of the land, or else the right itself was actuallyknown to the disponee.

So this suggestion accounts for some cases in which interests in the ‘neitherreasonable to expect nor sensible to require’ category are denied overridingstatus. But it does not fit all such cases. On the one hand, it does not explain theaccording of overriding status to informal legal easements that are neither knownto nor readily discoverable by the disponee, but are exercised in the year up tothe disposition. On the other hand, it is at odds with the withdrawal ofquasi-overriding status from interests actually known to a disponee, where their

67 LRA 2002, Sched 3 para 2.68 Law Commission, n 3 above, para 8.53.69 Gardner with MacKenzie, n 61 above, 64–65.



owner is not in actual occupation.70 It is also at odds with the denial of overridingstatus to informal equitable easements. These are no less readily discoverable, asa genus, than informal legal easements.71

Accepting then that the suggestion above must be at best non-exhaustive, onesearches for a further test or tests by which to determine which interests in the‘neither reasonable to expect nor sensible to require’ category shall and shall notbe overriding. As best I can see, none appears, sufficient to cover the wholenecessary ground. In particular, the Law Commission announces the exclusionof equitable easements from overriding status simply as part of a raft of measurescalculated to move towards the register being the source of all title.72 This is notat all a reason for excluding them specifically, while not excluding other interestsin the ‘neither reasonable to expect nor sensible to require’ category.

It incidentally follows that the denial of overriding status to informal equitableeasements may infringe their owners’ right to peaceful enjoyment under Article1 of the First Protocol to the European Convention on Human Rights. Sucheasements are in rem, and as such, any rule controlling the circumstances in whichthey will actually bind disponees interferes with their enjoyment and so engagesthe article. The question is whether the interference is proportionate, and sojustified. These rights are clearly in the ‘neither reasonable to expect nor sensibleto require’ category. Failing any explanation at all, let alone a satisfactory one,why they are nevertheless excluded from overriding status, their exclusion couldnot be necessary to the attainment of a legitimate policy goal, so could not beproportionate.73

But for present purposes, the point is the more generic and fundamental onethat, against the background that certain kinds of interest recognised by Englishlaw do not lend themselves to constitutive registration, the 2002 Act is notengineered so as satisfactorily to serve such interests. In a piece of legislationsetting out to regulate the whole territory of conveyancing (so long as the landin question is of registered title), this must be counted a deficiency.

The deficiency has its origin in the way in which the Law Commissionapproached this facet of its remit. The Commission’s ‘Introduction’ to itsproposals about overriding treatment begins:

70 Peffer v Rigg n 13 above, LRA 2002, s 29; see text at n 13 above. It is true that the Law Commission(n 3 above, para 5.16) explains this withdrawal in terms of the ‘ready discoverability’ suggestion:that if interests could bind on the basis of actual knowledge, there might be slippage towardsallowing them to do so on the basis of something less, falling short of ready discoverability. This isunconvincing, however. It did not even deter the Commission itself from building two referencesto actual knowledge into the Act: Sched 3 paras 2(c)(ii) and 3(1)(a).

71 The Law Commission, n 3 above, in effect admits as much. Its account of the restrictions on whichlegal easements can override (paras 8.68–8.72) is headed ‘Legal easements . . . that are not easilydiscoverable should not be overriding interests’. (Though to accord overriding status on the basisthat the easement has been exercised in the previous year is inconsistent with this.) In contrast, itsaccount of the exclusion of equitable easements (para 8.67) is headed simply ‘Only legal easements. . . may be overriding interests’, and the ensuing text adds no justification.

72 n 3 above, paras 1.14, 2.24–2.27, 8.1–8.2 and 8.6.73 And if the exclusion of equitable easements from overriding status is a puzzle, the puzzle is

deepened when we recall that, by LRA 2002, Sched 12 para 9 (n 15 above), equitable easementsdating from before October 2003 are not excluded – not merely for 3 years like other rightstransitionally saved by Sched 12, but permanently.

Simon Gardner


It is the fact that overriding interests do not appear on the register, yet bind anyperson who acquires an interest in registered land, that makes them such anunsatisfactory feature of the system of registered conveyancing.74

Assuming – as the Commission envisaged – that all title should be ‘by registra-tion’, overriding interests ought not to exist. That is logical. A Stalinist, weddedto constitutive registration, would therefore have annihilated overriding inter-ests. But the Commission did not, in the end, take this path. It chose to continueto accommodate overriding interests. But it seemed not to notice that there wasno common ground between this choice and the ideology of ‘title by registra-tion’. Good ideas for effectuating the former were never going to come fromrepeated reference to the latter.

In the original, the Law Commission’s sentence just quoted ends with afootnote reference to a remark in the Commission’s earlier Consultative Docu-ment:75 ‘[b]ecause such rights subsist in and operate outside the register, they arean inevitable source of tension within the land registration system.’ There is asubstantive difference between the two passages, and it is a crucial one. TheCommission’s earlier position was the more sensitive and helpful. ‘Tension’implies co-existence. Evidently, because tense, co-existence requiring thoughtfuland sensible management. But the tense co-existence of two valuable consid-erations is hardly uncommon, and its thoughtful and sensible management issomething to be expected from – indeed most likely a key reason for – alegislative overhaul of the area in question.

It is thus regrettable that the Law Commission’s thinking about its taskevolved as it did. To be sure, interests not lending themselves to constitutiveregistration continued to be accommodated. But this was incompatible with theCommission’s shift to a purely constitutive, ‘title by registration’, frame ofdiscussion. This move obliterated the conceptual domain within which coher-ently to plan the required tense co-existence. And the upshot is the unsatisfac-toriness we have found in the design of the Act’s eventual handling of suchinterests.

CONCLUSIONS

Registration of titles, more or less however designed, is beneficial. It simulta-neously promotes both ‘static security’, meaning the interest of those alreadyholding rights in land in having those rights safely maintained, and not imperiledby, for example, a transaction in favour of a disponee; and ‘dynamic security’, theinterest of disponees in safely acquiring the right they hope to when transactingabout a piece of land. More profoundly, it thus promotes neo-republican values:it tends to protect both right-holders and disponees against the arbitrary domi-nation they would suffer if they were subjected to counter-rights that theyshould not have been expected to guard against. It is amiable also to economic

74 n 3 above, para 8.6.75 n 2 above, para 4.1.



liberalism: especially, by limiting the set of problems with which disponees needconcern themselves, it reduces transaction costs, promoting wealth and thebeneficial effects thereof.

The basic philosophy behind the 2002 Act is that if registration is a goodthing, the more we have of it – the more intense the registration regime – thebetter. So its ideology was that the register should be conclusive (the single,all-encompassing, repository of title), and moreover registration should be con-stitutive (ie would solely and completely effect a disposition).76 Nothing moreintense could be conceived.

‘The more the better’, however, is an unsafe strategy for designing a regis-tration regime. It is possible for such a regime to be over-intense, and the 2002Act has this failing. For example, English and Welsh land law, with its informalrights, needs to maintain other repositories of title, sympathetic to such rights. Insupport of such rights, the Act provides for overriding interests. But the ideo-logical preoccupation dominating the Act’s design led to this provision not beingsatisfactorily thought out, and it emerges as incoherent. Likewise, other situationscan arise in which the assertions of the register about the state of the title partcompany with moral intuitions, as where those assertions stem from a ‘theft’ ofthe land. In its provision for alteration, the Act does have a mechanism forresponding to such problems, but again it was not thought out, and is vacuous.A provision such as section 58, confidently announcing the register to beconclusive, far from pre-empting such difficulties, actually engenders them.

The decision to make the Act’s regime not just conclusive but also constitu-tive added a further reason why its design needed extra care. Done right – if itputs registration, and so constitution, in the hands of the disposition’s parties – aconstitutive regime will, for that reason, be highly supportive of their autonomy.(In fact, by giving the parties complete control, more supportive than anyregime, such as that under the 1925 Act, which requires the involvement of theRegistry.) But if it leaves registration, and so constitution, to the Registry, it willdisappoint in this respect. With its promise of e-conveyancing – registrationelectronically effected by the parties themselves – the 2002 Act’s constitutiveprovision originally looked good. The promise’s evaporation, therefore, isregrettable.

Finally, we must remember that ‘land registration’ is, in less abstract terms, theset of rules controlling the operation of people’s interests in the land that theyhave no alternative but to live on, and that comprises the locus of their society.And we must then insist that land registration’s future is shaped by reflectionssensitive to this recollection, and all it implies. There must be a danger that theRegistry’s possible upcoming privatisation will introduce commercial driverstending in quite different, and inappropriate, directions.

76 Law Commission, n 3 above, Part I.

Simon Gardner


the land registration act 2002 - the show on the road

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