English Land Law

English Land Law (a) For conveyances completed on or prior to 27 September 1990, a valid contract of sale of land was governed under s 40 of the Law of Property Act 1925. Any land contract could be either oral or written but, if oral, evidence via a written document or an act or part performance was required to facilitate enforceability. For post 27 September 1990 conveyances, the rules under s 2 of the Law of Property (Miscellaneous Provisions) Act 1989 are applicable. The contract must be in writing, contain all the terms agreed between the parties and must be signed by those parties. (b) A valid deed made before July 31st 1990 required the signature of the person executing the deed, his seal or locus sigilli (LS), and delivery to the other party. After July 31st 1990, the procedure is under s 1 of the MP(LP)A 1990. A deed must express on the face of it that it is intended to be a deed, it must be signed by the person executing the deed and done so in the presence of a witness. Finally, the deed is to be delivered by the person executing the deed or by another on his behalf. Question Two Title does not pass for registered land until the title is registered in the Land Registry in accordance with s 27 of the Land Registration At 2002. This system differs from the unregistered system as here there is only the requirement for the execution of title deeds that effect the transfer of ownership. The difference is that title does not pass in the new system until title is registered. In the old, latter system, title would pass immediately upon delivery of the deed with the money purchase of the estate. Question Three The three principles of land registration reflect the purpose of this system, which is “To achieve greater simplicity and certainty of title to land by a system of central registration of property, ownership and charges.[1]” This therefore means that the requirement for investigation into title effectively stops upon inspection of the Registry and there are three principles of this system, which has its origins in Australia and is referred to as the Torrens system[2].

1. The Curtain Principle

This principle dictates that, in accordance with s 78 of the Land Registration Act 2002 trusts relating to land are kept away from the title. The result of this is that third parties have the ability to transact with registered land owners with out fear of overreaching. This rule was also affirmed in the Australian case of Wolfson v Registrar General (NSW)[3].

2. The Insurance Principle

Here the Crown will guarantee the accuracy of the registered title. The result of this is that the State will indemnify a registered proprietor from public funds in the event that they are deprived of their title or it is affected in any way by virtue of any fault in the register. The upper limit for compensation now stands at around A£2.5 trillion[4].

3. The Mirror Principle

The notion here is that Land Registration is to act as a mirror which will accurately ‘reflect’ the full myriad of estates and interests that are affecting the registered land. This therefore means that the register is seen as the all encompassing document[5]. Question Four In Joint tenancy co-owners own the whole estate together and are treated collectively as a single owner. The subject matter of joint tenancy cannot therefore be split and distributed between the joint tenants as each possess a right to the whole estate. In order for a joint tenancy to be valid, it is essential that the ‘four unities’ are present. Firstly, ‘Time’ requires that the interest of each of the co-owners vests at the same time. Secondly, ‘Title’ means that the joint tenants are to have obtained their title via the same means, such as the unified action of taking possession, which was established in Ward v Ward[6]. Thirdly, the ‘interest’ of each of the joint tenants requires to be absolutely identical and must therefore be of the same duration and nature. Finally, ‘Possession’ means that the co-owners must be equally entitled to possession of the land[7] and no single part of it can be for the exclusive possession of one party to the group of joint tenants. By contrast, tenancy in common constitutes the notion of shares in property that can be split up. Further to this, there is only one ‘unity’ principle, which is possession. This type of tenancy operates on the principle that the division of property occurs where there is a desire to liquidate a share by one of the tenants in common but, despite this all tenants in common share the right to possess the whole property. Question Five 1)Adverse Possession of unregistered land Possession is governed by the Limitation Act 1980, which states that no action for the recovery of land may be brought after a statutorily prescribed period of time has passed since the date of creation of the right of action[8]. The prescribed time is 12 years in accordance with s 15 of the 1980 Act. There are two requirements for there to have been successful expiration of the prescribed period.

1. Possession

The first element of possession is that it must be factual whereby, as stated by Slade J in Powell v McFarlane[9]: “What must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.[10]” Factual possession of ground behind a house would therefore constitute fencing it in and cultivating it, and this occurred when Jill fenced it in but the planting of trees is a debatable act of exclusive possession. The limitation period therefore began between 1985 and 1990 but no further accuracy is required as the second element of possession is not met. This is intention, which is to make clear to the rest of the world that there is intention to possess the lands exclusively. The planting of trees would not be sufficient for this but the fencing would and therefore, the period of limitation began in 1990.

2. Adverse Possession

Possession requires to have been inconsistent with the rights of the owner. Disused land that is subject to a future purpose by the proprietary owner is dealt with in the case of Leigh v Jack[11] which began the theory of implied licence whereby possession of disused land could not lead to dispossession by an adverse possessor. However, this assumption is no longer recognised as trite law since Sch 1, para 8(4) of the 1980 Act states that mere consistent treatment of land by the adverse possessor with the intentions of the proprietor will not assume implied licence. Therefore, the ground taken by Jill has been adversely possessed.

3. Aggregation of adverse possession

S 15(1) of the 1980 Act allows for the aggregation of the period of adverse possession thereby allowing a new owner to include any period of adverse possession by the old owner.[12] The adverse possession must be continuous and this is satisfied in the present circumstance with Bertha’s purchase from Jill.

4. Interruption of limitation

Proceedings may be brought by the true owner against the adverse possessor but proceedings must progress through to judgement and the mere issuing of a writ is not sufficient[13]. The Council’s letter to request the removal of a fence therefore does not satisfy the extent of action required to cease the running of the limitation period. There has been adverse possession of the unregistered land from 1990 to 2005, which means that the Council’s right of action has expired and Bertha has acquired a legal estate.

1. Adverse possession of registered land

The Land Registration Act 2002 creates limitations for adverse possession of registered land. The adverse possessor has to apply for registration in the land registry under Sch 6 but only once they have undergone uninterrupted possession for at least ten years[14] up to the date of application or within six months of an eviction notice[15]. Aggregation does not apply for registered land but Bertha still has more than ten years between 1992 and 2005 and, if the notice received from the Council is for eviction, she has sought advice well within six months. In accordance with rr. 194 and 198 of the Land Registration Rules 2003[16] the registrar must however notify the registered proprietor of the application once it is received. If there is no response to such notice, the adverse possessor may register title.[17] This will not happen to Bertha as the Council will object and defeat her claim. There are however three circumstances where responses by the proprietor or others with interests will not affect the application for registration of title by the adverse possessor. These are estoppel[18], some other right to the land[19] and reasonable mistake as to boundaries[20]. The second is irrelevant and no reasonable mistake could have been made as to boundaries as the house purchased by Bertha was registered no later than 1985 and the boundaries would have been clearly marked. There is also no notion of estoppel as the registered proprietor did not induce Bertha to believe that the land was hers[21]. Bertha will loose the registered land! Bibliography Legislation Land Registration Act 1925 Limitation Act 1980 Law of Property (Miscellaneous Provisions) Act 1989 Land Registration Act 2002 Land Registration Rules 2003 SI 2003/1417 Case Law Freeguard v Royal Bank of Scotland Plc (2000) 79 P & CR 81 Wolfson v Registrar General (NSW) (1934) 51 CLR 300 Creelman v Hudson Bay Insurance Co [1920] AC 194 Abbey National Building Society v Cann [1991] 1 AC 56 Ward v Ward (1871) LR 6 Ch App 789 Bull v Bull [1955] 1 QB 234 Powell v McFarlane (1970) 38 P & C R 452 Leigh v Jack (1879) 5 Ex D 264 Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] WLR 1078 Markfield Investment Ltd v Evans [2001] 1 WLR 1321 Secondary Resources Ruoff, T.B., 1957, An Englishman Looks at the Torrens System Sydney, Melbourne and Brisbane Gray K & Gray S.F., 2005 Elements of Land Law, 4th edition, Oxford University Press Land Registry Press Release LRP03/03 (4 February 2003) 1

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Footnotes

[1] Freeguard v Royal Bank of Scotland Plc (2000) 79 P & CR 81 at p 86 per R Walker LJ [2] Ruoff, T.B., 1957, An Englishman Looks at the Torrens System Sydney, Melbourne and Brisbane, at p 8 [3] (1934) 51 CLR 300, See Rich and Evatt JJ at p 308 [4] Land Registry Press Release LRP03/03 (4 February 2003) [5] See for example. Creelman v Hudson Bay Insurance Co [1920] AC 194 at p 197 per Lord Buckmeister. See also Abbey National Building Society v Cann [1991] 1 AC 56 at 78C per Lord Oliver of Aylmerton [6] (1871) LR 6 Ch App 789 [7] Bull v Bull [1955] 1 QB 234 [8] Limitation Act 1980, s 15(1) [9] (1970) 38 P & C R 452 [10] supra note 9 at p 471 [11] (1879) 5 Ex D 264 [12] Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] WLR 1078 [13] Markfield Investment Ltd v Evans [2001] 1 WLR 1321 [14] LRA 2002 Sch 1 para 1 [15] LRA 2002 Sch 1 para 3 [16] SI 2003/1417 [17] LRA 2002 Sch 6 para 4 [18] LRA 2002, Sch 6, para 5(2)(a) [19] LRA 2002, Sch 6, para 5(3) [20] LRA 2002, Sch 6, para 5(4)-(5) [21] Gray K & Gray S.F., 2005 Elements of Land Law, 4th edition, Oxford University Press, p 384

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