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UCL Jurisprudence Review

1995

Jeremy Bentham on land registration: outdated or outstanding?

John Berry
Subject: Jurisprudence. Other related subjects: Real property
Keywords: Jurisprudence; Land registration

*UCL Juris. Rev. 1 I. Introduction

In this paper I shall examine Jeremy Bentham's recommendations on land registration,
set in the context of his broader jurisprudence. By studying the current land registration
system in the light of Bentham's suggestions, it is my aim to show that most of his
thoughts are as relevant today as ever they were. This will be exhibited in the number of
areas where our system conforms to his principles.
I shall begin with the background to land registration in this country.
II. The History of Land Registration
By the start of the nineteenth century, the defects of this country's system of private
conveyancing had become obvious. In such a system it is for each potential purchaser of
land to “ investigate the title” by searching back through the deeds which represent past
dealings in that land. The problem here is the difficulty of cheaply obtaining the reliable
information necessary for safe dealing in land. Skilled practitioners with no incentive to
reduce the delays and expense must be employed, and, despite this, third parties often
appear, clutching an enforceable right against the newly-acquired property. In an
increasingly complex society, these defects became more than awkward, for “
uninhibited alienability of land is essential to the effective functioning of an exchange
economy. Land is a highly marketable resource and it is vital that the market in land
should not stagnate” .1 Conveyancing thus needed to be simplified.
During the early to mid 1830's, the influence of the country landowners gradually
diminished, and “ there was in consequence a better chance for reforming measures
designed to bring the land law into line with the needs of a commercialised, industrial
nation” .2 Accordingly, a Real Property Commission was appointed in 1828, “ to make a
diligent and full Inquiry into the Law of England, respecting Real Property” . 3 The
Commissioners described the mode of creation and transfer of interests in real property
as “ exceedingly defective” , and this they addressed in their Second Report. The
Commission invited suggestions, and it was at this stage that Jeremy Bentham became
involved. His “ Suggestions on Registration” were later published by Bowring as “ An
Outline of a General Register of Real Property” .
*UCL Juris. Rev. 2 The Real Property Commission concluded that most of the defects
of the land law could be solved by establishing either a register of titles or a register of
conveyances. There are clear differences between the two. A register of conveyances
does not guarantee the validity of the conveyances deposited there, and there remain
some matters which affect a title which will not be recorded in documents of title. While
information will be easier to obtain, expert legal help will still be needed to investigate
the title. On the other hand, entry on a register of title is itself constitutive of the validity
of the title. Less assistance will be required from skilled practitioners, for the theory is
that a prospective purchaser of the relevant title need only look to the register to
discover the full state of the title. The Commission finally recommended a general
register of conveyances, but for the time being nothing materialised.
Eventually, the present system of registration of title was established under the Land
Registration Act 1925. It was intended that the system would extend from designated
areas to cover the whole country within ten years. In fact it was only in 1989 that an
Order in Council finally extended “ compulsory first registration” to all of England and
Wales.4 Any land to which title is not registered must now be registered with HM Land
Registry on its next sale.
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So far as unregistered land is concerned, there is another form of register established

under the Land Charges Act 1925. This provides a comprehensive scheme of registration
for a fairly small group of equitable rights, known as land charges. Regarding any other
interests affecting the land, however, the old system of private conveyancing continues,
with all of its problems.
Before looking in depth at Bentham's suggestions, a look at his jurisprudence will explain
his interest in this subject.
III. Bentham's Jurisprudence
To understand Bentham's jurisprudence in this context, we must grasp the intimate
relationship between these ideas: “ the greatest happiness principle” , “ expectation” , “
disappointment” , and “ security” .
The starting point for any student of Bentham is “ the all-ruling and all-comprehensive
principle - the greatest happiness principle” .5 Happiness consists not only in pleasure,
but also in freedom from pain. Pleasure is said to be the only good, and pain the only
evil. Further, it is pain that is the stronger sensation, and this must be remembered
when calculating the net happiness provided by an act. Happiness is not restricted to
present pleasure and freedom from pain, because man “ is susceptible of pains and
pleasures by anticipation” .6 Hence happiness consists in present pleasure and freedom
from pain, and in the expectation of future pleasure and freedom from pain. Bentham's
view of human psychology is that expectations link man's present existence with his
future existence, and so are essential if he is to project his personality into the future.
*UCL Juris. Rev. 3 When expectations are not fulfilled, there is a disappointment. In
his essay “ On Retrenchment” , Bentham explains that the sensation of disappointment
carries with it a correspondent “ pain of disappointment” . 7 Disappointment is a real loss,
for an expectation of happiness turns out to be groundless, and “ proportioned to the
value of the interests in the subject-matter in the breast of the individual in question will
be, [both where something has been in possession or in expectancy], the pain of
disappointment.” 8 Accordingly, Bentham argues for the minimisation of this pain, under
the so-called disappointment-prevention principle.
Man can never take pleasure in his expectations unless they are secure. As Bentham
says, “ it is not enough to secure him from actual loss, but it is necessary also to
guarantee him, as far as possible, against future loss” . 9 Expectation and the prevention
of disappointment are thus dependent on security. Security is “ supremely important”
within Bentham's grand utilitarian design, for it guarantees our vital interest as human
beings.10 Indeed, elsewhere Bentham refers to the “ care of security” as “ the principle
object of law” .11 This security will consist in a number of things. Laws have some utility
in themselves, for they provide a framework for the protection of expectations. However,
for a law, or a system, to offer security to ordinary people, it must be intelligible and
accessible, or cognoscible. Bentham's promotion of the accessibility of laws will be
returned to later.
All this is vital in relation to property. Indeed, Bentham considers that property itself “ is
nothing but a basis of expectation; the expectation of deriving certain advantages from a
thing” .12 Where expectation is so crucial, it is clear that the scope for disappointment is
correspondingly large, and so much more important is security against that
disappointment. Indeed, the Commissioners' Second Report identifies as a main problem
of the time the “ harassing expenses and disappointments” attendant on real property
transactions (my italics).13
In another work, Bentham explains the connection between security and expectation in
this particular context: “ as regards property, security consists in receiving no check, no
shock, no derangement to the expectation founded on the laws, of enjoying such and
such a portion of good. The legislator owes the greatest respect to this expectation
which he has himself produced” .14
Specifically concerning the institution of a general register, Bentham considers that “ the
principal, if not the only intrinsically valuable…use consists in the preserving the several
proprietors and other persons respectively interested, from the pain of disappointment,
namely, that pain, or say that uneasiness which a man experiences when, without his
consent, anything valuable which he has been in the habit of looking to as his own,
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ceases so to be looked upon by him…” .15

*UCL Juris. Rev. 4 Returning to cognoscibility, Bentham once wrote: “ From simplicity
cognoscibility - cognoscibility happiness” . 16 His aim was “ giving to each party the
greatest facilities for ascertaining and understanding their respective rights” . 17 Further,
A.V.Dicey explains that “ a right which an individual cannot enforce is to him no right at
all” .18 As discussed, conveyancing in Bentham's time was incredibly complicated. The
language used was impenetrable to all but the legal mind. Although successful
registration of title should mean that simple forms take the place of many complicated
deeds, a register of conveyances would not, by itself, solve this problem. What was
needed was change in the nature of the conveyances themselves. Bentham was acutely
aware that reform of the operative side of the law must be accompanied by reform of
the substantive side, but the above considerations do explain why he was deeply
involved in this particular area of procedure.
I will now examine how Bentham's jurisprudence was manifested in his suggestions on
land registration.
IV. Bentham's “ Outline of a Plan of a General Register of Real
Property”
Bentham's starting point, in commenting upon the Commissioners' proposals, is to
express his belief that such a plan needs to be supported by “ reasons” , which show “ in
what manner…the arrangement proposed presents itself as likely to give a net increase
to the happiness of the person or persons in question” . However, referring to the
Commissioners' plan, Bentham declares “ I find in them no such thing” .19
Accordingly, Bentham proceeds to discuss the “ ends” that ought to be aimed at in the
system. These are, typically, bifurcated into the primary end and the secondary end. The
primary end is the prevention of the unexpected loss of money or money's worth. The
secondary end is that the burden (consisting in “ delay, expense and vexation” )
involved in achieving the primary end should be minimised.
Bentham distinguishes between five evils, the prevention of which constitutes the
primary end discussed above. In all five cases, the essential problem is the “ bareness of
the title to the subject-matter of the property in question” . They can be summarised as:
1. Where the title of a holder of real property, because of the lack of some piece of
evidence, turns out to be bad;
2. Where a person pays money over yet fails to receive the title because it is bad; and
where a person has undertaken to convey it for the money, but finds he cannot;
*UCL Juris. Rev. 5 3. Where a person lends money on the security of the title, which
turns out to be bad;
4. Where a person cannot become a seller of the title because his title is bad;
5. Where a person cannot become a purchaser of the title because the title is bad.
The loss may be of real property, money, or the non-attainment of an expected benefit,
but, in essence, the suffering involved “ has disappointment for its cause” .20
So far as the secondary aim is concerned, Bentham points out that the establishment of
the system will require money, which can only be obtained from taxes. These taxes will
be taken from the people without their consent, creating the pain of disappointment.
Because taking money away from people causes more pain than giving it to them, it is
essential that the costs of the benefit be minimised. However, bearing in mind the
primary aim, the result must not be to lower the quality of the officials employed.
Accordingly, Bentham combines these “ so intimately-connected positions” in the rule: “
Let official aptitude be maximised, expense minimised” .21
Bentham proceeds to offer a “ Table of Objects” , which lists seven objectives which the
system should comply with in order to fulfil this rule, and details how these objectives
should be fulfilled.22
1. Expense Minimised. This Object is to be achieved by having only one building to
hold the documents, no superfluous “ functionaries” , minimising salaries by competition
(and having gratuitous probationary work), and employing the so-called “ manifold”
mode of writing for exemplars of documents. Bentham describes this “ treat” elsewhere,
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with characteristic attention to detail.23

2. Delay Minimised. To minimise the delay of the service provided, the officials should
be working for as long as the situation demands, and there should not be any benefits to
the officials from any delay.
3. Aptitude of the Several Functionaries Maximised. This is to be achieved by
payment of salaries instead of fees (to prevent conflicts of interest), and
probationership.
4. Aptitude of the Machinery Maximised. This involves empowering the head
registrar to make amendments in the light of experience.
5. Efficiency of the Registration Process Maximised. This is to be satisfied by the
use of an all-comprehensive map of the whole territory.
6. Extent of Applicability of Process Maximised. To achieve this, for example, the
register should include all interests in real property, and should be available for use free
of charge.
*UCL Juris. Rev. 6 7. Burden Attached to Use Minimised. This also involves
providing the service free of charge, and making use of the postal service for the
communication of documents.
V. Land Registration Today
How well does our current system fulfil each of Bentham's seven Objects?
1. The first Object was that the expense of the system should be minimised. Instead of
Bentham's one building, today's system is maintained centrally at HM Land Registry in
Lincoln's Inn Fields, London, and regionally at no less that nineteen district land
registries.
A centralised system offers the advantage of reducing the overall expenditure on
buildings and infrastructure, and decreasing the opportunities for misconduct. There will
be some negative effects on the accessibility of the registry to the public if it is
centralised, with many seeing it as a lifeless monolith. However, even HM Land Registry
admits that there is no more than a historical explanation for the regional offices - these
were needed to deal with the flood of new work as compulsory registration on sale was
extended across the country, and at a time when personal attendance by customers at
the registry was more common. With the development of computerisation and direct on-
line access to the register via personal computers, the efficiency savings offered by a
centralised repository increase further. This is an example of an area where Bentham's
ideas ring even more true in today's technological society. While the Registry's practice
of sending inspectors around the country guards against misconduct, it remains true that
centralisation would be more efficient, despite the logistical problems of moving over
8,000 employees into a new building.
One of Bentham's concerns was that the level of employees and remuneration should not
exceed the minimum necessary. The number of employees has fluctuated over the
years, broadly in line with the amount of work to be done. In the boom years of the late-
1980s, the Registry was criticised for being understaffed. Recently, because of a
reduction in work, there has been a recruitment moratorium. Having become an
Executive Agency, the Registry is now more autonomous of the Government, and more
responsible for its own efficiency. Accordingly, the Registry has put out several areas of
its work to competitive tender.
The Annual Report for 1993-94 explains that Legal Services, for example, has been
passed on to private sector bidders. Opening up the Registry to the principles of
competition should ensure that the levels of employment and remuneration are
subjected to the scrutiny of the market, which should keep both to the minimum
necessary, as Bentham wished.
A striking departure from Bentham's approach is our lack of employee probationership.
Officialdom in Bentham's time was a closed shop for the aristocracy, and as part of his
greater design to bring in able middle class citizens, he advocated something like
probationership for all government departments. This is one area where, it seems to me,
Bentham's approach is now outdated. He justifies his suggestions by asking, “ of those
by whom, in any tolerable degree, appropriate aptitude is possessed, who is there that
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will decline submitting to it?” . 24 I suggest: *UCL Juris. Rev. 7 many would.
S.R.Simpson believes that it might be difficult “ to find staff of adequate calibre at the
sort of salary justified by the amount of work available, particularly if there is extensive
decentralisation” .25 It will be even more difficult to find quality staff if they are to have
to work for a year without any pay. Most, lacking the necessary private finance, will look
elsewhere for employment. In this instance I would suggest that the current approach is
more likely to fulfil Bentham's Object than his own suggestion.
Very important here as elsewhere is the computerisation of the land registration system,
which should be complete by 1998.26 As I mentioned above, Jeremy Bentham urged the
use of the manifold method of writing for the exemplars of documents, in order to save
time, energy, and money. Had Bentham known of computers, he would have advocated
their use in the same terms, except that the considerable benefits of computerisation
would have been described as much more than a “ treat” . Fewer physical searches of
the records need to be carried out by staff, and the system, by minimising operating
costs, will rapidly repay the initial expense. It provides internal efficiency, speedy access,
and is less prone to mistake, loss, or fraud. Fewer mistakes will be translated into fewer
claims against the Registry for indemnities (see below), contributing to the minimisation
of cost. The current Chief Land Registrar is correct to consider that computerisation “
offers the prospect of further simplification of conveyancing” .27
2. The second Object was that delay should be minimised. “ Delay” , writes S.R.Simpson,
“ is not always recognised as being as important as it is” . 28 Certainly in the past there
have been considerable delays, perhaps of six months before a title was registered. It
was once objected that “ in practice the clogged administration machinery means homes
standing empty, deals falling through, and higher property prices” . 29 The reason for the
delays was said to be “ an over-worked and under-staffed organisation” . Since those
days of the booming property market, things have changed.
According to the Annual Report for 1993-94, over 99% of all applications for official
searches and office copies are dispatched within two days, and many are provided over
the telephone or via the direct access service. 30 Furthermore, the Registry promises
customers that it will strive to offer a faster service, and publish targets alongside
performance. However, worryingly, the Registry also promises to “ provide an extra fast
service on payment of an additional fee” .31
Although this might be a recognition of commercial reality, the principle is obnoxious.
Land registration should be seen as a public service, before which everyone is equal.
One commentator has warned that this “ could be a recipe for more people receiving
worse service” .32 It might mean that wealthy individual or corporate landowners
routinely jump the queue, the extra fee being of no consequence to them. Delay should
be minimised, but it is unfair to make delays *UCL Juris. Rev. 8 dependent on how
much you can afford to pay. Bentham condemned the practice of charging extra fees for
an accelerated service in any area of officialdom. Where such a fee system operates, a
corrupt functionary is given the incentive and the opportunity to slow down the standard
process so that customers are bound to pay extra.33
3. The third Object was that the aptitude of the functionaries should be maximised.
Bentham believed that employees should be paid salaries as opposed to fees. He once
wrote that remuneration by fees is “ in an eminent degree unapt” in “ every official
situation whatsoever” .34 Employees of the Land Registry are paid salaries, to some
extent performance related. This is based on annual staff appraisals which ensure that
performance is not merely a matter of output. Monitoring of the quality of work, for
example, also plays a part, which would meet with Bentham's approval.
A second concern of his was the kind of qualifications customarily called for, which he
brands “ much worse than useless: it is a source of delusion, producing confidence
where confidence has no ground to stand on” , that is, specifying someone as a member
of a class of people exercising a profession, and taking some sort of oath of office. 35
Today's arrangements again live up to Bentham's principles. Under the 1925 regime, the
Chief Land Registrar had to be a barrister of at least ten years' standing. No such
restrictive rules survive. This is entirely sensible, considering that one of the greatest
figures in the history of world land registration, Sir Robert Torrens, was not a lawyer.
Bentham, who wanted a transparent system of appointments to any public office, would
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be pleased to note that since the Registry became an Executive Agency, the appointment
of the Registrar has been an open competition, advertised in the national press, and run
by the Lord Chancellor's Department, with the help of representatives from the Law
Commission and the Civil Service Commission. All that is required is evidence of good
management ability. No longer is the appointment as secretive as the appointment of a
judge. Other positions are also advertised, and although some posts require legal
training, others are often filled by “ home-grown” employees showing the necessary
administrative or management skills.
Vital to the aptitude of the functionaries is training. Bentham would be pleased to see
the “ strong emphasis” which the Land Registry puts on its internal training
programmes.36 Whilst it must be appreciated that a source such as the Land Registry's
Annual Report might be the subject of bias, in this instance it would seem unlikely that
an Executive Agency, naturally imbued with principles of competition and efficiency,
would be disinterested in training. The Registry is now seeking a more flexible approach
to training, and has embarked on programmes on team-working at all levels, to
complement the move to smaller multi-skilled working groups. At management level,
there are regular courses and workshops on personnel matters, and the Registry has
participated in a Cabinet Office project to identify the training and development needs of
managers in customer-focused organisations. *UCL Juris. Rev. 9 Another important
matter in this context is the admittance of the private sector to the regime, discussed
above. In sum, there does appear to be a strong commitment to maximising the
aptitude of the “ functionaries” .
4. The fourth Object was that the aptitude of the machinery should be maximised, and
Bentham believed that this could be secured by giving the head registrar the sole
responsibility for reforms, because only he has the necessary practical experience of the
system In this country, the Chief Land Registrar has a quite extensive quasi-judicial
capacity to determine day-to-day matters in the operation of the register, but his
decisions are subject to the control of the High Court. As Lord Denning MR put it, he is
not allowed “ by his practice to make bad law” . 37 Nevertheless, Curtis and Ruoff
comment that “ the English Chief Land Registrar possesses wide judicial powers of a kind
and extent undreamed of” in other countries. 38 Bentham would presumably applaud
this.
Regarding reform, the Registry merely, in its words, continues to “ contribute to
legislative proposals” .39 The Registry's “ subordinate legislation” , such as the Fee
Orders that set the fees for searches of the register and so on, is made not by the
Registrar alone, but by the Lord Chancellor, with the advice of the Rule Committee,
which is made up of the Chief Land Registrar, a judge of the High Court, and delegates
of the Bar, the Law Society and the Ministry of Agriculture Fisheries and Food. The
Registrar does have a major role here. It is he who calls the Committee, and it is his
opinion which will be accepted in principle, subject to specific objections from the other
interested parties. He therefore has “ some legislative responsibilities” , but not the
sweeping powers Bentham advocated.40
There are reasons for this. Despite the Registrar's unparalleled knowledge of the system,
there is a problem of accountability. He is appointed by the Lord Chancellor, and is
responsible for submitting an annual report to the Lord Chancellor. Hence the Registrar
is not accountable to the public in the same way as elected Members of Parliament are,
and as a dissatisfied public will tend to blame the Government for any failings in the
operation of what the public sees as a public service, it is appropriate that Parliament
has the final say in major reforms of the system.
As an Executive Agency, the Land Registry does, after all, come under the overall
responsibility of Parliament. Bentham sees no danger in the Registrar having such
power, for his proposals are said to exclude any conflicts of interest. However, Bentham
himself recognises that the tiniest chink can be exploited by the unscrupulous, and given
the complexity of the land registration system, I would find this unsettling. Bentham
does advocate the security provided by a power of the legislature to disallow the head
registrar's amendments, but to my mind the Registrar's proposals should require positive
approval by the legislature.
Another issue relevant to the maximisation of the aptitude of the machinery is the
introduction of performance targets and formal quality assurance techniques, which,
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according to the Annual Report, has led to “ a significant reduction in the number of
reported errors. Some 40% *UCL Juris. Rev. 10 fewer certificates are now being
returned for correction” .41 Of course, cynics might accuse lawyers of not doing their jobs
properly.
5. The fifth Object was that the efficiency of the registration process should be
maximised, with the use of a comprehensive map. Bentham would have no complaints
here. Every registered title can be identified on the official title plan. Extracts of accurate
large scale Ordnance Survey maps are used to index the position, extent and title
numbers of all registered land. In addition to the filed plan, the register provides a short
written description of the location and extent of the property.
The Ordnance Survey is involved in the continuous updating of its maps, which ensures
that they are as accurate as any map could be in a rapidly changing world. Some say
that we should adopt the alternative approach to boundary identification of the Torrens
system, under which the precise line of the boundary is guaranteed by an official mark.
In general, there is no such guarantee in this country, but there do not seem to be many
problems, and the cost or burden of sending officials out to validate every boundary in
the country would surely outweigh the benefit. The only real problem in this country is
that mentioned already: not all of the territory of the country is registered land, and
none of this regime will be available to owners of unregistered land.
6. The sixth Object was that the extent of the coverage of the process should be
maximised. The first and most important divergence between our system and Bentham's
proposals under this Object is that even though the scope of registration of title has
been extended to all parts of the country, many titles remain unregistered. Information
is held by the Registry on no less that 14.7 million of about 22 million property titles in
England and Wales.42 However, according to one commentator, two million titles will
remain unregistered even in 2011.43 This is because land may be transferred without
being sold, so avoiding the compulsory registration provisions. As S.R.Simpson explains,
“ until registration of title is complete, England and Wales will be saddled with a
defective register” .44 Clearly, many of the potential benefits of a register of title are lost
if another system still has to be maintained. This is certainly a damning indictment of the
present system, but there are excuses. An immediate requirement for all land to be
registered would flood the registry with work.
The second divergence is that the record of each individual title may not contain every
single piece of relevant information. Most controversially, there are some interests,
known as “ overriding interests” , which are valid even if not registered by the interested
person. Bentham believed that all interests should be included, for the expense would be
“ next to nothing” . One example of an overriding interest is the interest of a person “ in
actual occupation” of a property, within the meaning of the Land Registration Act
1925.45 He will be entitled to remain there in accordance with his right even if he has not
registered his interest at the Registry.
*UCL Juris. Rev. 11 There is in fact a good reason for the institution of overriding
interests. The idea is that they are matters which it would be unreasonable or not
sensible to require registration of, because they are easily discovered by an intending
purchaser. At one time, the courts' interpretation of the concept of “ actual occupation”
accorded with this, when the occupation had to be “ actual and apparent” . 46 However,
the Court of Appeal overturned this, and held that there was no such need. This is a
major blemish on the so-called “ mirror principle” - that the register should accurately
reflect the full state of the title. As Vinelott J put it, “ it is quite clear that there can be
cases where a purchaser may make the most searching inquiries without discovering
that the land in question is in actual occupation of a third party” .47
Nor is that the end of the matter. No registered title is ever quite conclusive. The court
and the Registrar have jurisdiction to “ rectify” the register in certain defined
circumstances, and this is another example of how confidence in the register might be
misplaced. However, the rectification of the register is at least essentially discretionary.
Further, in sympathy for the reasonable expectations of an innocent purchaser who has
taken up possession, the register normally should not be rectified against such a person,
except to give effect to an overriding interest or a court order. 48 As Roger Smith says,
the “ grounds for rectification should be both clear and precise” . 49 If rectification were
freely available, it would, as the Law Commission recognises, be “ productive of future
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50
uncertainty and contrary to the raison d'etre of registration of title.”
The system of registration would then fail in its aim of providing security for
expectations, and fail to fulfil Bentham's ideals. As a consequence of saying that
registration of title provides a “ state guarantee of title” , there is a system of
indemnification which essentially compensates anyone who suffers loss as a result of the
deficiency of the register. When the register is rectified, or not rectified, the person who
suffers loss might be entitled to an indemnity. In this way his expectations might not be
quite as disappointed as they would be.
A gaping hole in this system is the fact that a purchaser who suffers loss by reason of a
person holding an overriding interest is not entitled to an indemnity. The system of
indemnity should be extended. It is acknowledged that a title is lost by virtue of the
existence of an overriding interest so infrequently that this extension would not lead to a
marked impact on fees, or on the expense of running the system, and this “ insurance”
would lead to a greater confidence in the register.
The existence of overriding interests would not be too great a departure from Bentham's
ideals if their existence had to be easily apparent, and if the indemnity provisions were
extended. In fact, their existence in these circumstances may be positively supported. At
present this is not the case. The Law Commission continues to believe that it “ may be
unjust to require that a particular interest be protected by registration” , but “ in the
interests of certainty and of simplifying *UCL Juris. Rev. 12 conveyancing” , the class
of such an interest “ should be as narrow as possible” , including only such interests as it
is not reasonable or not sensible to require to be registered. 51
Bentham also urges that the register should be available for use free of charge to the
public. The Registry in fact does charge certain fees for its service, which do not directly
take into account ability to pay. In this instance, our system fails to live up to Bentham's
principles. Among the arguments in favour of free substantive registration is that it is in
the general interest of economic development and social progress that title should be
secure and that real property should be easily transferable. The state, as well as the
individual, benefits.
It should, however, be recognised that the fees for searches, office copies and the like
are very modest, and have been consistently reduced due to increasing efficiency.
Further, the Land Registry is committed to strive to continue to reduce charges, and to
ensure that the fees charged reflect the costs of the service. 52 This system of fixed
charges will mean that the amount charged never actually reflects the cost of the
individual dealing - either the customer will lose out by being over-charged, or the
Registry will lose out by undercharging. As Bentham puts it, fees “ can not be so
adjusted as to bear exact proportion to the value of the subject which it affects” . 53 At
this level it will only be a matter of a few pence, but it is as well to remember how
meticulous Bentham was in his calculations of utility.
As regards fees for substantive registration, the Land Registry follows the principle that
the greater transactions subsidise the smaller ones. This means that the smaller
transactions can be done more cheaply, which is likely to help the worse off. This system
is slightly more expensive to administer than a fixed charge system, because the figures
need to be calculated. Although Bentham urges the cost of running the system to be
minimised, and although this approach in effect over-charges those involved in larger
transactions, I suggest that he would approve of this help for the worse off in view of the
fact that his wish for entirely free service is not fulfilled.
Another matter which can be considered here is the extent to which the register is
accessible to the public. Bentham would presumably support openness in the register. In
the words of the 1857 Royal Commission Report, “ in the earlier periods of our history
publicity was considered essential in almost all dealings with landed property” , but our
register has traditionally been quite private. 54 This was seen as typical of Britain's
obsession with secrecy, but was overturned in the Land Registration Act 1988, following
the Law Commission's view that openness would not constitute a real invasion of an
individual's privacy, but would help simplify conveyancing. Most entries can now be
inspected by anyone, on payment of a small fee. John Sweetman believes that house
ownership, as a matter of home life, is a “ purely private” matter, and would prefer that
the category of persons allowed access be somewhat widened to include potential
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purchasers, for example.55

*UCL Juris. Rev. 13 It might indeed be distasteful that nosy neighbours can find out
certain things about the ownership of the properties near them, and such information
can no doubt be used maliciously by the unscrupulous, but John Sweetman himself
recognises that in any case the determined will always be able to find out what they
want to. Openness in the register does not seem to have caused problems since its
introduction, and it sends out an important message of accessibility to the public.
7. The seventh Object was that the burden involved in the use of the register should be
minimised by, for example, making use of the postal service. In this regard Bentham
was pleased to see the Commission's proposals: “ I have the satisfaction of seeing this
mode of communication ordained to be employed” . 56 Today, it would seem incredible if
HM Land Registry did not make use of the Royal Mail. However, in view of the traditional
discouragement of postal searches under the Torrens system, in favour of personal
searches, this may be admired. Indeed, today it is even possible to carry out an official
search over the telephone, or via a personal computer. The burden to the user, who can
usually now obtain what he wants within minutes, and need not travel long distances at
inconvenient times, is infinitely smaller than Bentham could have foreseen.
To promote the register's accessibility, the Registry has promised to treat the customer “
with courtesy and helpfulness at all times” , and to “ provide advice” and “ an
opportunity to discuss difficulties personally” .57 To what extent these vague
commitments are fulfilled in practice is another matter.
VI. Conclusion
It is clear from the above discussion that Jeremy Bentham, as ever, had his finger on the
pulse. Comparatively few aspects of his recommendations appear outdated. In some
instances the present registration system regrettably fails to live up to his principles. For
example, the register does not yet cover the whole of the country, the current scope of
overriding interests shatters the “ mirror principle” , and fees are charged for its use.
However, in some other instances, the current system represents a justifiable departure
from Bentham. The restricted reforming powers of the Registrar, the lack of periods of
probationership and at least the principle of overriding interests, are such examples.
Today's Registry generally conforms well to Bentham's ideals, and recent reforms show
that it is moving closer and closer to his approach.
Regardless of how well Bentham's principles are applied in today's system, they are
generally accepted and proclaimed. The enduring value of his basic principles despite
over 160 years of great social, political, and economic change, is remarkable. A more
recent exposition of the principles to which a register of title should aspire is provided by
Sir Charles Fortescue-Brickdale,58 who listed six, and Dowson and Sheppard, who added
a seventh.59
*UCL Juris. Rev. 14 1. Security (this underlies all of Bentham's Objects, but can be
seen particularly in “ efficiency of the registration process maximised” , and “ extent of
applicability of process maximised” );
2. Simplicity (again, this can be seen within most of the Objects, but especially in “
burden attached to use minimised” );
3. Accuracy (corresponding to “ aptitude of the machinery [and the functionaries]
maximised” );
4. Expedition (corresponding to “ delay minimised” );
5. Cheapness (corresponding to “ expense minimised” );
6. Suitability to its circumstances (the fulfilment of all of the Objects ensures this);
7. Completeness of the record (seen in “ extent of applicability of process maximised” ).
With such startling similarity, no doubt Jeremy Bentham's suggestions were the starting
point and major influence in this reformulation, although this is not acknowledged. Given
the extent of this convergence, and the extent of homogeneity between Bentham's
principles and the practice of today's Registry, it is likely that Bentham has had a major
influence on the history of land registration. Even if Bentham's recommendations at the
time fell on deaf ears, it is fair to say that his ideas were not, as he hoped they would
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not be, consigned to “ oblivion” , but remain outstanding.60

Bibliography:

Books:
Dowson and Sheppard, Land Registration, 2nd ed., 1956.
Dicey, A.V., Law and Opinion in England, 1905.
Fortescue-Brickdale, Methods of Land Transfer, 1914.
Gray, K., Elements of Land Law, 2nd ed., 1992.
Holdsworth, W.S., Essays in Law and History, 1946.
Keeton and Schwarzenberger, Jeremy Bentham and the Law, 1948.
Long, D.G., Bentham on Liberty, 1977.
Ruoff, Curtis and Ruoff on the Law and Practice of Registered Conveyancing, 2nd ed.,
1965.
Simpson, A.W.B., A History of the Land Law, 2nd ed., 1986.
Simpson, S.R., Land Law and Registration, 1976.
Articles and Essays:
Anonymous, “ I Have a Dream” , (1992) Cony 101.
*UCL Juris. Rev. 15 Anonymous, “ Ample Funds: Poor Performance” , (1987) Estates
Gazette 1437.
Anonymous, “ Towards the Sunlit (Registered) Uplands” , (1988) Cony 73.
Bentham, J., “ Outline of a Plan of a General Register of Real Property” , in The Works
of Jeremy Bentham, Bowring (ed.), vol. v, p.417. Bentham, J., “ Commentary on Mr.
Humphreys' Real property Code” , in The Works of Jeremy Bentham, Bowring (ed.), vol.
v, p.387.
Bentham, J., “ Principles of the Civil Code” , in The Theory of Legislation, Ogden (ed.),
1931, p.110.
Bentham, J., “ On Retrenchment” , in The Collected Works of Jeremy Bentham: Official
Aptitude Maximised, Expense Minimised, P.Schofield (ed.), Appendix B, p.342.
Bentham, J., “ On the Mode of Remuneration as between Salary and Fees” , in The
Collected Works of Jeremy Bentham: Official Aptitude Maximised, Expense Minimised,
P.Schofield (ed.), Appendix C, p.386.
Smith, R., “ Land Registration Reform - The Law Commission's Proposals” , (1987) Cony
334.
Sokol, M., “ Jeremy Bentham and the Real Property Commission of 1828” , Utilitas vol.
4, No. 2, 1992, 225.
Sweetman, J., “ One Cheer for Opening the Land Register” , (1985) 129 SJ 799, 822.
Cases, Statutes, and Other Instruments:
Hodgson v Marks (1971) Ch 892.
Kling v Keston Properties Ltd (1983) 49 P & CR 212.
Land Registration Act 1925.
Land Registry Annual Report and Accounts 1993-94.
Land Registry Explanatory Leaflet “ On-Line” .
Land Registry Explanatory Leaflet No.15 “ The Open Register” .
Law Commission Report No. 158.
The Registration of Title Order 1989 (SI 1989/1347).
Strand Securities Ltd v Caswell (1965) Ch 958.
UCL Juris. Rev. 1995, 2, 1-15
 Page

1. Elements of Land Law, Gray, 2nd ed., p.98.

2. A History of the Land Law, A.W.B.Simpson, 2nd ed., 1986, p.273.
3. Jeremy Bentham and the Real Property Commission of 1828, Sokol, Utilitas Vol.4, No.2, 1992, p.225.
4. The Registration of Title Order 1989 (SI 1989/1347).
5. “ On Retrenchment” , in The Collected Works of Jeremy Bentham; Official Aptitude Maximised, Expense Minimised, P.
Schofield (ed.), Appendix B, p.342.
6. “ Principles of the Civil Code” , in The Theory of Legislation, Bentham (ed.), Ogden 1931, p.110.
7. “ On Retrenchment” , op. cit., p.342.
8. Ibid., p.343.
9. “ Principles of the Civil Code” , op. cit., p.110.
10. Dr. Paul Kelly, delivering the Bentham Seminar on 8 March 1995: “ Neutrality, Security and Misrule: Bentham's Political
Liberalism” .
11. “ Principles of the Civil Code” , op. cit., p.109.
12. Ibid., pp.111-112.
13. Real Property Commissioners - Second Report (1830) at 17, quoted in S.R.Simpson, op. cit., p.39.
14. “ Principles of the Civil Code” , op. cit., p.113.
15. “ Outline of a General Register of Real Property” , in Bowling v, p.421.
16. Draft “ Suggestions on Registration” , UC lxxxvi 147, quoted in Sokol, op. cit., p.228 (note 16).
17. UC xi 30, quoted in Sokol, op. cit., p.231 (note 34).
18. Law and Opinion in England, A.V.Dicey, 1905, pp.204-205.
19. Bowring v, p.418.
20. Ibid., p.421.
21. Ibid.
22. Ibid., pp.421-435.
23. “ Commentary on Mr. Humphreys' Real Property Code” , Bentham, in Bowring v, p.406.
24. Bowring v, p.424.
25. Land Law and Registration, S.R.Simpson 1976, p.173.
26. See the Land Registry Explanatory Leaflet “ On-Line” .
27. Land Registry Annual Report and Accounts 1993-94, p.5.
28. S.R.Simpson, op. cit., p.17.
29. (1987) Estates Gazette 1437.
30. Annual Report, p.11.
31. Ibid., p.61.
32. (1988) Conv 73, at 75.
33. See “ On the Mode of Remuneration as between Salary and Fees” , in The Collected Works of Jeremy Bentham: Official
Aptitude Maximised, Expense Minimised, Appendix C, p.386.
34. Ibid., p.368.
35. Bowring v, p.426.
36. Annual Report, p.16.
37. Strand Securities Ltd v Caswell (1965) Ch 958 at 977E.
38. Curtis and Ruoff on the Law and Practice of Registered Conveyancing, Ruoff, 2nd ed., 1965, p.12.
39. Annual Report, p.24.
40. S.R.Simpson, op. cit., p.294.
41. Annual Report, p.11.
42. Land Registry Explanatory Leaflet No.15.
43. (1992) Cony 101, at 103.
44. S.R.Simpson, op. cit., p.48.
45. s.70(1)(g) Land Registration Act 1925.
46. Hodgson v Marks (1971) Ch 892, per Ungoed-Thomas J at 915.
47. Kling v Keston Properties Ltd (1983) 49 P & CR 212 at 222.
48. s.82(3) Land Registration Act 1925.
49. (1987) Cony 340.
50. Law Corn No 158, para 3.5.
51. Ibid., para 2.6.
52. Annual Report, p.59.
53. “ On the Mode of Remuneration as Between Salary and Fees” , op. cit., p.383.
54. Registration of Title Commission Report (1857) pp.1-2.
55. (1985) 129 SJ 799, 822.
56. Bowring v, p.435.
57. Annual Report, p.61.
58. Methods of Land Transfer, Fortescue-Brickdale, 1914, p.2.
59. Land Registration, Dowson and Sheppard, 2nd ed., 1956, p.72.
60. Outline of a Plan of a General Register of Real Property, op. cit., p.435.

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