The Law of Unregistered Land

Although registration of land is not compulsory the Government have tried in recent times to encourage the registration of land by offering incentives to those who are in possession of unregistered land[1]. Generally speaking land that is unregistered only becomes registered when the owners of that land sell it to another[2]. All land purchased since the Land Registration Act 1925 should be registered as the Act made it possible for land sold after this date to be registered[3]. Concern has been raised by the Government about unregistered land as it is sometimes difficult for an owner of that land to prove his ownership of it[4]. At present only 50% of land in England and Wales is registered. It is the aim of the Land Registry to vastly increase this amount by 2012. In order to achieve this they have set up teams dedicated to dealing with the registration of unregistered land. Their aim is to make the voluntary registration of unregistered land[5] as simple as possible and to provide adequate support to those seeking to register their land. To encourage people to register their land the Land Registry point out the advantages behind the registering of the land. These include reducing the risk of adverse possession[6], promoting the security and convenience of the title being registered and enabling proof of ownership to be simpler. The risk of adverse protection is removed by the Land Registration Act 2002[7].

Once the land has been registered the Land Registry will issue a warning to the owner of any claim that has been made against their title[8]. By registering the land the owner will protect the boundaries of their estate and could save themselves from potentially large legal bills in the future when trying to fight a claim for adverse possession. Registered titles are guaranteed by the state. The title sets out a description of the land and lists the rights and obligations that affect that land. When carrying out transactions in the future the deeds are no longer required as all the information contained in the deeds will be held at the Land Registry[9]. Over the years the knowledge of how to deal with ancient titles is dwindling so registration will be of a great advantage in the future when that knowledge is extinguished altogether[10]. Registration provides proof of ownership and helps to simplify conveyancing which in turn reduces legal fees and avoids unnecessary delays. Owners and advisors are able to access the registered title and plans on line at any time thanks to the internet. Potential purchasers are more likely to expect the land to be registered in the future and may be more tempted to buy land that is registered as the process is simpler and less expensive. At present in an attempt to encourage land owners to register their land the Land Registry is offering an incentive by discounting the normal charges for registration by 25%[11]. It is a possibility that in the future land registration will become compulsory and the discounts that are being offered at present for the fees might not be available.

The Land Registry announced that it is their intention to try to make it so that all land is registered by 2012, which would seem to suggest that some form of compulsory registration is likely to be introduced in the future[12]. It is likely that land owners could end up losing large areas of their land if they do not register the land. This might occur if someone takes possession of adjoining land and then registers their claim to that land with the Land Registry[13]. As the land claimed is unregistered the Land Registry have no way of proving who the land belongs to and are therefore could allow someone who is not the rightful owner of the land to register the land as theirs[14]. As the deeds are the only proof of the land held in unregistered property it can be difficult to establish exactly what is owned by the landowner especially in situations where the deeds are passed from generation to generation without the registering of the transfer. In some cases deeds can consist of several hundred pages detailing the entire estate.

The loss of one or more of the pages of the title deeds could mean that a future heir to the land may not know of the full extent of the estate they have inherited. This could leave large areas of land with seemingly no owner[15]. Some less scrupulous individuals have exploited this anomaly and have acquired land that appears to have no owner without having to pay for the land[16]. The Land Registration Act 2002 s3 allows for the voluntary registration of unregistered land whilst s4 of the Act lays down the regulations with regard to when registration is compulsory. Land Registration on transfers became compulsory from 1990 onwards. At present the law requires registration when the qualifying estate is transferred, where the unregistered legal estate is transferred under s171A of the Housing Act 1985 or where a grant of land is given to another for a term of year’s absolute of more than 7 years and there has been consideration given for this transfer. Such registration is also required when a lease is granted or a mortgage is secured against the estate. S5 gives the courts extra powers to require registration in respect of such things as rentcharges or profit a prendre. Where a duty to register is required it is the duty of the estate owner or his successor in title to ensure that the registration is done[17]. Non-compliance with this duty renders the transfer or grant void and the new owner or grantee would lose the right to possess the land[18]. If the transfer is voided due to non-registration the transferee, grantee or mortgagor will be liable to the other party for any costs incurred for the retransfer, regrant or recreation of the legal estate as well as any other liability the other party might have incurred as a result of the non-compliance[19]. When the Land Registration Bill was first discussed those responsible for the Bill anticipated that in the future all land would be registered thereby simplifying the way in which land is bought and sold and easing the burden of proving land ownership.

The Bill itself did not include plans to make registration compulsory but preferred to anticipate that those who owned unregistered land would be persuaded by the benefits offered with land registration to voluntarily register their land. From the evidence to date there is still a great proportion of land that remains unregistered which would appear to suggest that landowners are not convinced of the advantages of registration, or are deterred from doing so by the cost or by the knowledge that if the land is registered others can browse the Land Registry entries and be able to ascertain who owns certain pieces of land. It was suggested during the discourse in the Land Registration Bill that in the future there would be a compulsory registration system applied to all land. The right to lodge a caution against unregistered land could cause difficulties when the owner of the land comes to sell the property[20]. It could be the case that someone who does not have title to the land registers a caution on the land[21]. It is then the responsibility of the true owner to prove that the caution should not have been entered on the land and that he is the true proprietor of the land[22]. In an attempt to make more of the land registered the Government introduced new triggers for registration during 1998. These included gifts of land, assent of land on death and raising monies by mortgages. The 2002 Act has moved towards the compulsory introduction of electronic conveyancing by using electronic signatures to transfer and register property. If electronic conveyancing is made compulsory those who have unregistered land will be forced to register their land if they wish to transfer or sell it in the future. The problem of adverse possession was highlighted in November 2006 by the case of JA Pye (Oxford) Ltd v United Kingdom[23]. In this case the applicant was seeking redress against the Government for filing to protect their interest in the land. In 2002 the applicant won the right to appeal against a decision made by the court awarding the respondent Graham the tight to possess the land under the doctrine of adverse possession.

The respondent in the 2002 case Graham had been using land owned by Pye for a period in excess of 12 years and had registered a caution on the land using the doctrine of adverse possession. Pye became aware of this caution when they attempted to reclaim their land so that they could push forward with their intended development of that land. The respondents were successful in their appeal and were allowed to reclaim their land when the European Court on Human Rights reached the conclusion that there had been a violation of the European Convention Human Rights 1950 Protocol 1 Art 1. It is problems such as this that the Land Registration Act 2002 has attempted to address by encouraging the voluntary registration of unregistered land. The Environmental Stewardship[24] scheme that has recently been introduced is aimed at giving farmers in England the opportunity to be paid for environmental work on their farms. Inclusion of the land of the farmer onto the scheme will require the land to be registered on the Rural Land Register[25]. Farmers must also have their land registered with the Rural Payment Agency in advance of their application to have their land included in the scheme. As the vast majority of unregistered land is in rural areas and has been passed down to family members the land has remained unregistered as it escapes the triggers of registration that were included in the 1925 Act.

The scheme mentioned above would have the impact of making much of the unregistered land registrable. Providing that sufficient numbers apply to go onto the scheme this could lead to less unregistered land in the UK. The Government has drawn up a 10 year Strategic Plan setting out the role of the Land Registry in the 21st Century. Lord Irvine the previous Lord Chancellor stated that ‘by 2012, we will have a complete Land Register of England and Wales, that provides enhanced information for business and is at the centre of a revolutionised, fully electronic, conveyancing process’. At present it is estimated that 82% of all property in England and Wales is registered. The aim of the Plan is that registration of all properties will be complete by 2012. A review of the numbers of unregistered properties in the UK is due to be conducted in 2008. The review will look at measures that are needed to be taken to assist in the registration process so that the target date of 2012 can be attained.

The Strategic Plan is designed to run until 2014 by which time the Land Registry should have accomplished its mission or providing the world’s best service for guaranteeing ownership of land and the simplifying of property transactions[26]. The conclusion that can be drawn from the above is that by the year 2012 it will become compulsory to register all land. It is unclear from the above what sanctions will be taken against those that fail to register their land, however it is possible to surmise that lack of compliance could result in the owner of the unregistered land losing ownership of that land. If the Government is going to be able to deprive landowners of their land in this way it is likely that the land would become the property of the crown as is the case if someone dies intestate and there are no surviving relatives to lay claim to the estate. One advantage that could result from the Government seizing unregistered land, is that land that has not been cultivated for years because the owner is not aware that the land belongs to him, or the deeds to that area of land have been lost so no owner can be traced, will be able to be developed on and could be used to provide housing for those who are not in a position to be able to buy their own house?

Bibliography

1. McKenzie, JA, & Phillips, M, Textbook on Land Law, 2006, 11th Ed, Oxford University Press Sparkes, P, A New Land Law, 2003, Hart Publishing
2. Thomas, M, Statutes on Property Law, 8th Ed, 2001, Blackstone’s
3. Wilkie, M, Luxton, P & Malcolm, R, Questions and Answers Land Law, 2007, 6th Ed, Butterworths
4. https://www.defra.gov.uk https://www.landregistry.gov.uk
5. https://www.cumberlandellis.com https://www.justice.gov.uk/
6. https://www.naturalengland.org.uk https://www.ramblers.org.uk Table of Cases Buhr v Barclays Bank Plc [2001]
7. EWCA Civ 1223 [2002] B.P.I.R. 25 [2001]
8. 31 E.G.C.S. 103 (2001) 98(31) L.S.G. 38 [2001] N.P.C. 124 [2002]
9. 1 P. & C.R. DG7 Central London Commercial Estates Ltd v Kato Kagaku Ltd [1998]
10. 4 All E.R. 948 [1998]
11. 3 E.G.L.R. 55 [1998]
12. 46 E.G. 185 [1998] E.G.C.S. 117 (1998)
13. 95(37) L.S.G. 37 (1998) 95(29) L.S.G. 28 (1998)
14. 142 S.J.L.B. 252 [1998] N.P.C. 125 (1999)
15. 77 P. & C.R. D5 Times, July 27, 1998; JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003]
16. 1 A.C. 419 [2002] 3 W.L.R. 221 [2002] 3 All E.R. 865 [2002]
17. H.R.L.R. 34 [2003]
18. 1 P. & C.R. 10 [2002] 28 E.G.C.S. 129 [2002] N.P.C. 92 [2002] 2 P. & C.R. DG22 Times, July 5, 2002 Independent, July 9, 2002 JA Pye (Oxford) Ltd v United Kingdom (44302/02) (2006) 43 E.H.R.R. 3 19 B.H.R.C. 705 [2005] 3 E.G.L.R. 1 [2005] 
19. E.G. 90 [2006] R.V.R. 188 [2005]
20. 47 E.G.C.S. 145 [2005] N.P.C. 135 Times, November 23, 2005 Tennant v Adamczyk [2005] EWCA Civ 1239 [2006]
21. 1 P. & C.R. 28 [2005] 41 E.G.C.S. 205 Tiverton and North Devon Railway Co v Loosemore (1883-84) L.R. 9 App. Cas. 480 Trustees of Sir John Morden's Charity v Mayrick [2007] EWCA Civ 4 (2007) 151 S.J.L.B. 127 [2007]
22. N.P.C. 7 Wallcite Ltd v Ferrishurst Ltd [1999] Ch. 355 [1999] 2 W.L.R. 667 [1999]
23. 1 All E.R. 977 [1999] 1 E.G.L.R. 85 [1999] 05 E.G. 161 [1998]
24. E.G.C.S. 175 (1998) 95(47) L.S.G. 30 (1999) 96(4) L.S.G. 39 (1999) 143 S.J.L.B. 54 [1998]
25. N.P.C. 157 (1999)
26. 77 P. & C.R. D20 Times, December 8, 1998 Table of statutes Land Registration Act 1925 Land Registration Act 2002 1

 

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