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The register of title of any particular estate is ... intended to operate as a


mirror, reflecting to potential disponees (and to any other interested
persons) the full range of any proprietary benefits and burdens which
currently affect the land.1
Critically consider the extent to which the Land Registration Act 2002
achieves this objective.
by
Stephanie Fiona Murphy
Introduction
The main aim of the Land Registration Act 19252 (LRA) was to encourage the development
of the registration of title to land3 and introduced for the first time a power in central
government to designate areas in which registered conveyancing would be compulsory.4
However, this was not a success as all titles to land are not registered.5 Thus, the LRA 1925
was repealed and replaced by the Land Registration Act 20026 in its entirety7 following a joint
1 K. Gray et al., Elements of Land Law 5th ed (New York: Oxford University Press,
2009) at 190 paragraph 2.2.24 (hereinafter Gray and Gray)
2 Land Registration Act 1925 (hereinafter LRA 1925) amended by LRA in 1936,
1986, 1988 and 1997 and by the Land Registration and Land Charges Act 1971
3 M.P. Thompson., Modern Land Law 3rd Ed, (New York: Oxford University Press,
2006) at 94
4 City of London Building Society v Flegg [1998] A.C. 54 at 84 per Lord Oliver
5 Supra note 3, at 94
6 Land Registration Act 2002 (hereinafter LRA 2002)
7 LRA 2002, Section (s.) 135, Schedule 13
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project between the Law Commission and Land Registry8 which introduced a number of
significant reforms. The main objective of the LRA 2002 was to safeguard proprietary rights
of land in England and Wales and take the form of title by registration instead of
registration of title.9 In other words, the Law Commission attempted to secure the transfer
of land for both the buyer and the owner. Thus, the most significant change and will have the
most impact on land registration is that the register should be a complete and accurate
reflection of the state of the title of land at any given time and that the buyer should be able to
investigate title to land their thinking of purchasing online with absolute minimum of
additional enquiries and inspections.10 Currently there is over 80% of land is registered
with the land registry maintaining more than 23 million titles.11As a result of the LRA 2002
there is compulsory registration on most dispositions of interests in land and that in turn will
guarantee good title. The register of title is intended to operate as a mirror, this is one of the
three fundamental principles of land registration. Thus, the mirror principle actually means
that the register should be an exact mirror of the interests that exist on land and therefore the
ownership of land could be accurately identified with the proprietary benefits and burdens
affecting the land. This essay will critically examine the recent enactment of the LRA 2002
and explore the effect new legislation upon land registration.

Land Registration Act 2002 the Changes


LRA 2002 has made significant changes to registration system in England and Wales. The
motivation behind the enactment of the LRA 2002 was to simplify the process of

8 Law Commission and HM Registry, Land Registration for the Twenty-first


Century: A Conveyancing Revolution, 2001, HC114 (UK) the Law Commission
and the Land Registry came together to reform the land registration system and
published the reform proposals jointly in a the above document (hereinafter
Law. Com. No. 271)
9 P. Sparkes, A New Land Law 2nd ed, (US and Canada, Hart Publishing, 2003) at 11 para.
1.18 taken from the Law Commission Report 254 (1998), [2.6]

10 Law Com. No 271, supra note 8 at Para. 1.5 main objective of the LRA 2002
was to introduce a new system of electronic conveyancing
11Ibid, Law Com. No. 271
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conveyancing by introducing a new system of electronic conveyancing.12 The government


wanted to reduce the risk of a purchaser acquiring an unsafe title and by introducing
electronic conveyancing they hoped that the new system of an online register would solve
this problem. For Instance, if you were a purchaser and you were acquiring land all you
would have to do is go online to verify proof of ownership to registered land which should be
accessible and regulated by the register.13 This is achieved through the mirror principle
where technology is used to ensure that reflection of rights is more accurate and there is no
further need of investigation of title as it is all available on the register.14
The other two key features of land registration are the insurance principle and the curtain
principle. Firstly, the insurance principle refers to the guarantee secured by the State that any
loss incurred by a registered land resulting from reliance on upon it by the purchaser on the
land Registry will be compensated by way of public funds.15 So if you are a purchaser and
relied on the information provided on the land Registry and it was inaccurate and you
suffered loss because of that fact then you are entitle to compensation. Finally, the curtain
principle is this concept that land registration may allow certain equitable interests that are
attached to the land and are not disclosed on the register, but are hidden from a purchaser's
view.16 However, the curtain and insurance principle are almost exactly the same
implications of overreaching and indemnity which are generally unchanged by the LRA 2002.
So far we have established that the curtain and insurance principle are unaltered by the
legislation. However, this is not the case for the mirror principle which contains provisions
that restricts the mirror principle. In other words, this provisions relates to the proprietary

12Law Com. No. 271, supra note 8 at paragraph 1.1


13 Abbey National Building Society v Cann [1991] 1 AC 56 at 78C per Lord Oliver
Aylmerton
14 Williams & Glyns Bank Ltd v Boland [1981] AC 487 per Lord Wilberforce
(hereinafter Boland)
15 Gray and Gray, supra note 1 at 189 paragraph 2.2.21
16 Wolfson v Registrar General (NSW) [1934] 51 CLR 300; see also Gray and
Gray at 189 paragraph 2.2.20
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rights that the legislation allows to exist unregistered and can only be connected through
actual inspection of the land which will be explored in more detail later on.17
Furthermore, LRA 2002 established a new system for the registration of title to freehold and
some lease hold land and any interests affecting the land.18 Thus, LRA 1925 only recognised
two kinds of estates and registration of title was only compulsory on a grant of lease for more
than 21 years and assignment of leases with over 21 years unexpired and over 21 years to run
and also on a sale of a fee simple.19 That meant that a sale that took place after the enactment
of new legislation in October 2003; where any transfer of an unregistered freehold estate or a
leasehold estate in land with more than seven years to run as opposed to the 21 years will be
subject to compulsory registration.20 This will ensure that more commercial leases will now
be registered. Further changes include leases for discontinuous periods,21 and finally rights
that can be registered as independent registered estates to comprise freehold estates.22 If you
do not register when required to do so this means that the buyer or transferee have inadequate
protection and can only gain an equitable title to the land. That means that the seller or
transferor is still the registered proprietor of the land. Thus, if you have failed to register then
the person with an equitable title is exposed to risk and uncertainty and cannot take advantage
of the priority rules and there is always the risk that the register owner would attempt further
dealings in relation to the land with other parties.23
17 LRA 2002, ss.11 (4) (b), 12 (4) (c), Schedule 1, s. 29 (1) and Schedule 3
18 Gray and Gray, supra note 1 at 189
19 LRA 1925, where the LRA 1925 only recognised two kinds of registered
estate; the freehold and long lease
20 LRA 1925 s. 3 (1) (a) and(3), s. 4 (2) Prior to LRA 2002, leases of over 21
years, and assignment of leases with over 21 years unexpired, had to registered
at the Land Registry; this will now be reduced to seven years
21 LRA 2002, s. 3 (4) where a discontinuous lease is granted out of an
unregistered title, the lease may now be voluntarily registered but this is only
compulsory where the total lease exceeds seven years
22 LRA 2002, s. 3 (1)(a) and s. 4 (2) (a)
23 LRA 2002, s. 29 and s. 30 priority rules are specified
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Another significant change in the LRA 2002 was in relation to overriding interests which
have participated greatly to the crack in the mirror principle as the LRA 1925 referred to the
interests which are not required to be registered and can override registration and can be
accumulated as minor interests.24 Thus, the old legislation allowed for proprietary
entitlements that existed outside of the register.25 In other words, this prevents LRA 2002
from operating the mirror principle at full capacity which is a major flaw in the system.
However, the LRA 2002 reduced the effect of these minor interest that can be still be
binding despite the fact that they are unregistered on the register which are now known as
interests that override rather than overriding interests.26
Furthermore, there is a smaller comprehensive category of interests listed in the new Act27
that replaces section 70 (1) (g) of the old legislation.28 The category of overriding interests
include legal easements, profits a prendres, land charges, franchises, public rights of way and
right to rent reserved to the Crown.29 Also, any lease that is less than seven years need not be
recorded on the register but is still binding on other parties.30 The whole rationale behind this
was to find a middle ground between an owner who might hold on to the land for longer
period of time as oppose to an individual who may be renting it as a home. Therefore, the
24 Gray and Gray, supra note 1 at 191 paragraph 2.2.25
25 LRA 2002, Schedule 3
26 Martin Dixon, Protecting Third Party Interest in Registered Land: in
Contemporary Perspectives on Property, Equity and Trusts, available at:
https://www.academia.edu/2991412/Protection_Third_Party_Interests_in_Register
ed_Land_in_Contemporary_Perspectives_on_Property_Equity_and_Trust_Law
(accessed: 29th February 2016)
27 LRA 2002, Schedules 1 and 3 Schedule 1 refers to the first registration of
title and is much more extensive than Schedule 3 has a series of exceptions
under ss. 4 (d), (e) and (f)
28 LRA 1925 s. 70 (1) list 4 categories which include s. 70 (1) (a) easements
and profits including equitable easements; s. 70 (1) (f) rights of adverse prosser;
s. 70 (1) (g) rights of a person in actual occupation; s. 70 (1) (k) leases granted
for a term not exceeding 21 years
29 LRA 2002, Schedule 3 the category of overriding interests are set out in
Schedule 3 which replaces the overriding interests LRA 1925
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interest of an individual who is in actual occupation need not be recorded on the register but
this can bind later registered interests.31 The LRA 2002 gives priority to overriding interests
despite the fact that they are not protected on the register.32

Another key change which as resulted from the LRA 2002, and just a brief mention of it
relates to adverse possession. The key change only relates to registered land and not
unregistered land which remains unchanged and the requirement of 12 years occupation is
still required to obtain title. For instance, this only relates if occupy registered land without
the permission from the owner for 10 years then you can apply to be registered as the legal
owner of that land.33 However, this can interpreted as a human right issue34 where you have
interest which remain overriding for 10 years are displayed as miscellaneous.35

Under LRA 2002,36 any easements and profits a prendre with regard to registered land that is
known to exist by the purchaser must be registered. Furthermore, the new legislation
recognises two types of entry known as notices and restrictions that can used to protect third
party rights. A notice is where you have an entry on the register in respect of a burden of an
30 Ibid, Schedule 3, paragraph 1 this is an significant change as the LRA 1925
granted overriding interests for 21 years leases as oppose to the now seven
years
31 Ibid, Schedule 3, paragraph 2 which replaces LRA 1925 s. 70 (1) (g)
32 Ibid, s. 29 (2) (a) (ii)
33 s. 96, paragraph 1.1 of Schedule 6
34 J.A. Pye (Oxford) Ltd v Graham [2002] 3 WLR 221 where the issue of adverse
possession was discussed
35 LRA 2002, paragraph 10-14 of Schedule 3
36 LRA 2002, Schedule 3
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interest of one party against the registered estate of another.37However, according to Gray and
Gray, notices may pose problems in relation to unregistered land insofar as it might be
incompatible with the successful operation of electronic conveyancing.38A restriction is an
entry in the register that prevents dealing with a registered property in respect of
dispositions.39 Thus, such prevention may be restricted in time.40 Nonetheless, the LRA
2002 eliminates the unpredictability and the overlaps that were in the previous system.41

The question of what constitutes actual occupation and what that actual refers too was best
described by Lord Wilberforce when he stated:
The words of actual occupation are ordinary words of Plain English and should be
interpreted as such. The word actual emphasises that physical presence is required.42
However, the issue of physical presence was further discussed in Abbey National BS v.
Cann43 where it was established that the person claiming actual occupation but was not
physical present but had someone looking after the property was considered sufficient. The
37 s.32 (1)
38 Gray et al, Land Law 7th ed, (Oxford: University of Oxford, 2011) at pp 199
39 LRA 2002, s.40 (1)
40 Stephen Harker, Family Matters Dawson Cornwell
http://www.dawsoncornwell.com/en/documents/Article-June-11.pdf (accessed:
29th February 2016) at 15
41 Practice Guide 19: Notices, Restrictions and the Protection of Third Party
Interests in the Register (16th November 2015) available at:
http://www.gov.uk/.../practice-guide-19-notices-restrictions-and-the-protection-ofthird-party-interests-in-the-register (accessed: 01st March 2016)
42Boland, supra note 14 7 at 504 per Lord Wilberforce
43 Abbey National Building Society v Cann [1991] 1 AC 56 at 93 per Lord Oliver
suggested that a caretaker or the representative of a company can occupy on
behalf of his employer was sufficient
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courts took a more liberal view of what they constituted was actual occupation to protect an
interest for the purposes of s. 70 (1) (g).44That been said actual occupation by a licensee
does not award the licensee with an overriding position. For instance, actual occupation by a
licensee and who is not a representative occupier does not give personal rights to the
licensor.45

However, a stream of difficult cases arose where for example; in one case where individuals
claiming to have an interest in the particular property arising from a constructive trust that
there was a common intention that they had a beneficial interest but was rejected because the
court adopted a strict test to reason such a common intention in Lloyds Band v Rosset.46 Thus,
actual occupation only applies to the land that an individual is occupying.47 However, the
actual occupation of a spouse in a family home still acts as an overriding interest48 and is
still corresponds with the current legislation.49 There is nothing in the current legislation that
says otherwise. Therefore, what is clear is that you must have a proprietary interest in the
property which is capable of amounting to an overriding interest which was illustrated in

44 LRA 1925 s. 70 (1) (g) established that the time for determining occupation
for the purposes of s. 70 (1) (g) was the date of completion of the transaction
and not the date of registration. In addition, the mere moving in to the property
was not enough to constitute actual occupation [1991] 1 AC 56
45 Strand Securities Ltd v Caswell [1965] Ch 958 at 981 per lord Denning M.R.
46 Lloyds Bank v Rosset [1989] Ch 350 concerned the provision in the LRA
1925 that were decided before the enactment of the LRA 2002 and where they
discussed the degree of physical presence required will depend on the
disposition of the land
47 Thomas v Foy [2009] EWHC 1076 if an individual is occupying a particular
part of the land then that part of the property is protected only; so actual
occupation means just that and you cannot have an interest over property that
you are no physical occupying
48 Boland, supra note 14
49 Ibid
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some recent case law in relation to individuals and banks.50 Under LRA 2002 and the changes
to the overriding interests means that banks now a much wider scope where they can
challenge alleged interests.

Conclusion

LRA 2002 did make some key changes to land registration in England and Wales which was
long overdue and it has achieved the objective of simplifying and modernising the
registration of land. In addition, to simplifying the registration system it has now made the
register reflect a more accurate picture of title to land. Furthermore, some of the key changes
of the LRA 2002 have seen the differences between the registered land and unregistered land
is even more transparent. These changes has transform the whole land registration system
rather than codifying it.51 This includes key changes in the regulation of land such as more
protection for third party rights; shorter leases that can be registered and changes to the law of
adverse possession. Furthermore, the issue of overriding interests under the LRA 1925 was
often referred to as the crack in the mirror of registration of title because it protected certain
interest which may override registration. That means that overriding interests are
undiscoverable by viewing the register alone and prevents the mirror principle from fully
operating. The new system was designed to eliminate this crack in the mirror and simpfy
the process of land transfers. Former Chief Land Registrar has described overriding
interests as a stumbling block on registration of title.52 To conclude, no doubt the LRA
2002 has reformed the way land registration system in England and Wales operates and has
50 Thomas v Clydesdale Bank Plc (t/a Yorkshire Bank) [2010] EWHC 2755 (QB)
where the court dealt with the issue on whether at the time of the disposition
did Ms. Thomas have an interest in the property which was the interest of a
person in actual occupation see also similar cases where the court dealt with
the same points of law was: Bank of Scotland v Hussain & Anor [2010] EWHC
2812 (ch); National Provincial Bank v. Ainsworth [1965] AC 1175
51 The Law Commission (Law com. No. 158) Third Party Report on Land
Registration, paragraph 1.6
52 Law Com. No. 158 at 5
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eliminated a number of problems and concerns that existed in LRA 1925. However, there are
still a number of issues that remain but it has been a success insofar as it gives more
protection to purchasers and buyers and to third party rights but some areas as discussed
above still need reform.

Bibliography
Gray, Kevin, Gray, Susan Francis, Elements of Land Law 5th Ed, (New York:
Oxford University Press. 2009)
Gray, Kevin, Gray, Susan Francis, Land Law 7th Ed, (Oxford: University of
Oxford, 2011)
Sparkes, Peter, A New Land Law 2nd Ed, (US and Canada: Hart Publishing,
2003)
Thompson, Mark .P. Modern Land Law 3rd Ed, (New York: Oxford University
Press, 2006)
Internet Resources
Dixon Martin, Protecting Third Party Interest in Registered Land: in Contemporary
Perspectives on Property, Equity and Trusts, available at:
https://www.academia.edu/2991412/Protection_Third_Party_Interests_in_Registered_Land_i
n_Contemporary_Perspectives_on_Property_Equity_and_Trust_Law
Harker Stephen, Family Matters Dawson Cornwell
http://www.dawsoncornwell.com/en/documents/Article-June-11.pdf
Practice Guide 19: Notices, Restrictions and the Protection of Third Party Interests in the
Register (16th November 2015) available at: http://www.gov.uk/.../practice-guide-19-noticesrestrictions-and-the-protection-of-third-party-interests-in-the-register
Articles
Law Commission, Land Registration for the Twenty-first Century: A
Conveyancing Revolution, 2001, HC114 (UK)

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The Law Commission: Third Party Report on Land Registration, (1987)


(Law Com. No. 158)
Property Law: Land Registration (1983) Law Com No 125; Property Law: Second Report on
17 Land Registration (1985) Law Com No 148; Property Law: Third Report on Land
Registration (1987) Law Com No 158; and Property Law: Fourth Report on Land
Registration (1988) Law Com No 173.
English Case
Abbey National Building Society v Cann [1991] 1 AC 56
Bank of Scotland v Hussain & Anor [2010] EWHC 2812 (Ch)
City of London Building Society v Flegg [1998] A.C. 54
J. A. Pye (Oxford) Ltd v. Graham [2002] 3 WLR 221
Lloyds Bank v Rosset [1989] Ch 350
National Provincial Bank v. Ainsworth [1965] AC 1175
Strand Securities Ltd v Caswell [1965] Ch 958 .
Thomas v Clydesdale Bank Plc (t/a Yorkshire Bank) [2010] EWHC 2755 (QB)
Thomas v Foy [2009] EWHC 1076
Williams & Glyns Bank Ltd v Boland [1981] AC 487
Wolfson v Registrar General (NSW) [1934] 51 CLR 300
Legislation
Land Registration Act 1925
(LRA 1925 was amended in 1936, 1986, 1988, 1997 and by the Land Registration and
Land Charges Act 1971)
Land Registration Act 2002

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