Adverse Ownership and the Land Registration Act 2002 - Essay Example

Introduction One of the thorny issues in modern England is the issue of land and property ownership. As an important issue, land in modern England is an important issue and yet there are no enough laws to deal with this issue. While there have been many issues with regard to land issues, the law is no adequate to deal with the many issues that exist. There are several reforms that have been tried in reforming the laws regarding property ownership. These reforms have not necessarily been successful and in most cases have fallen short of the needs of 21st century needs. One such attempt is the Land Registration Act 2002 which was seen as the successor of the Land Registration Act 1925 (Francis, 2013).1 The land registration Act of 2002 was based on the earlier UK land laws such as the land registration Act of 1925. Although the Land Registration Act 2002 meant to improve on the issues of the Land Registration Act 1925, it still has many issues which would need to be taken care of. Critics see the Land Registration Act 2002 as still based on archaic property ownership principles, making it hard for the Land Registration Act 2002 to be able to solve modern challenges of property ownership. Some of the issues with Land registration Act 2002 are as follows; More burden on the part of the landlords Under the Land Registration Act 2002, landlords have a header time dealing with registrations issues. This is especially while dealing with tenants who are not represented by a legal professional. To avoid issues, most landlords will have to avoid leasing their land for more than seven years. Practicality gap The Land Registration Act 2002 also requires that land owners and leasers to unregister any leases once they expire. The issue with this is the fact that most small scale owners may not be careful enough to waste their time to go unregistered expired leases. This means that the Land Register will not have data that completely reflects the status of land ownership because expired leases, which have not been unregistered from the land register, will be seen as still active. This is similar with so many other issues in the land registry that fail to give a more accurate situation of the land ownership in the country. Anyone can make and objection to land registration The Land Registration Act 2002 introduced a major problem with regard to the way the land is registered. For instance, the act allows for anyone to object to a registration as long as he has a reliable ground. While this is intended to solve some ownership problems, the issue with it is that people of ill will can use it to thwart land ownership by other people. This is because when an individual objects to the registration of land, this can lead to the land being put on hold from use by any of the parties in conflict. There are some issues regarding this issue. To begin with, for this provision to world in favor of a better land ownership plan, it would be necessary to have a highly responsive system that works to solve such issues.2 Yet, this is not the true with the Land Registration Act 2002 and there are no easy ways to solve these issues. When a certain piece of land is in dispute, it takes too long to be solved and this means that the land will remain dormant for that long period. For the Land Registration Act 2002 to solve these issues, it would be absolutely necessary to have a system that solves the issue of land registration in a sensitive way. Adverse ownership and the Land Registration Act 2002 This is probably one of the contentious issues with regard to the Land Registration Act 2002. For instance, the Land Registration Act 2002 takes consideration of the archaic rules of adverse possessions. Most professionals have felt that adverse possession is no longer an important issue in modern property ownership and must not be used as part of the system in the modern property laws. While adverse possession is important in the early days, it does not have as much relevance in modern law and defiantly not in modern ownership of property laws. Yet, the Land Registration Act 2002 has taken into consideration the issue of adverse possession, thus remaining in the past while trying to focus on the future. The issue of adverse possession was important in the past when land registration was not complete and posed a big issue to the determination ownership of land. However, this is no longer a problem and should not be an issue of concern. The issue of adverse possession is handled differently in the Land Registration Act 2002. In the new act, an applicant for land ownership based on adverse ownership is only allowed to apply for ownership for land that it already registered. This creates two major gaps. The first gap is that this does not account for the unregistered land and there may be a lot of it available. Secondly, this requires the person applying for adverse ownership to be able to have more proof for the ownership of the land. If for instance a person counters the application within the period stipulated (of thirty day), the application fails (Great Britain: Law Commission). The Land Registration Act 2002, however, does provide for alternative ways first applicant to be able to still apply for ownership in the event that the registered owner or owners counter his application. This is, however, not effective in that the legal cost of going through with this is too high for most small scale land owners. If a small-scale adverse land owner applies for ownership and the actual registered owners counters the offer, the possibility of the small scale adverse owner wining the legal battle is too low. This indicates that the Land Registration Act 2002 is more theoretical than it is practical. It is not practical in that it does not solve the issue of land ownership and the many land disputes in the land. If a poor squatter who has been in possession of a piece of land applied for ownership and the registered owner counters the application, this would mean that the person will not be able have the land, unless he is prepared for the court battle that may ensue. In most cases, such a squatter may not be able to afford the court battle and in this case the possession of the land would remain in the hands of the original registered owner. With the Land Registration Act 2002 coming into action in 2003, adverse possessors were only given a transitions period in which they would be protected by the old system. After the three years, the adverse possessor would have to apply for the ownership of the land which he adversely posses. If the possessor fails to apply, he would have to lose his rights of protection. This is especially so if the registered owner was to transfer the possession of the land in and the adverse possessor had not applied for the ownership. Definitely, this transition period has already passed and this means that most people who did not have the opportunity to apply for the land ownership would have to lose their estate. The adverse possessor A closer look at the Land Registration Act 2002 indicates that its provisions are not able to solve the issue of land problems in England and Wales. What the country needs is a pragmatic legislation that is not based on the archaic principles of property ownership. For instance, legislation that would be best to deal with the issues that the country faces would be one that is able to take care of the needs of small scale land ownership.3 Modern laws and legislation must consider that justice must not be expensive. Especially, justice should not be too expensive for poor people to access it. Modern laws must understand that expensive justice is no justice at all. The Land Registration Act 2002 fails to take his concern at heart. Land Registration Act 2002 and fraud In the recent years, fraudulent people have managed to exploit of the many weaknesses in the land registry. These fraudsters have managed to move the ownership of huge tracks of land into their ownership. Most of them are wise enough to know that the system will catch up with them and eventually they will be found out. As a result, instead of just depending on the land to be the target price, after transferring the land to their names, they take huge loans and mortgages using the land. Eventually, the actual owners are the ones left to pay the huge mortgages. This has two fundamental issues to it. One, the fact that the owners of land can be exposed to such big risks is an issue. Secondly, the government has to take the losses of compensating the affected people. More importantly, some land owners affected by this kind of fraud may not afford to go through the process of applying for compensation, which in most cases involves legal processes. In this case, they are left with the option of paying up the mortgages and loans taken in their names by the fraudsters. If they can’t afford, the land is then taken away from their ownership. Modern technology and the Land Registration Act 2002 While the Land Registration Act 2002 preserves most of the principles in the Land Registration Act 1925, it allows for a futuristic approach to land n issues. For instance, it allows for electronic transfers in the future. This means that in the future, land owners will be able to transfer land from one owner to the other using digital certificates. This is a big leap in the land registration in England and Wales, however, with most of the registrations rules and weak and able to be exploited by fraudsters, there is a question of whether this sill helps in making land ownership any easier. The move to take ups technology is a good more, however, as with any other sector, the question of security comes in. In this case, the fact that the Land Registration Act 2002 has enough loopholes to be taken advantage by fraudsters may lead to the question of how effective the system will be. Electronic conveyance and reality One of the major issues with Land Registration Act 2002 is that it sought to introduce technology to land registry. As Hudson (2013) says, the Land Registration Act 2002 was aimed at introduction electronic conveying in order to make the transfer of real property, and especially land, easier.4 In this regard, Land Registration Act 2002 sought to make sure that an online electronic registry was available and that it mirrored to the actual situation. While this has been archived in one way or the other, there are some issues which have not been totally considered. For instance, there are some unregistered issues which nonetheless affect the land ownership. Due to that they are not reflected in the electronic system, they pose a problem to the system. These are called overriding interest, and are not necessarily reflected in the electronic system (The Law Teacher, para 3).5 Conclusion It is necessary to have land ownership legislations that help in dealing with modern issues as regard to land and property ownership. While the Land Registration Act 2002 provides for some important aspects as to how to manage modern lands issues in England and Wales, the act seems to be needy in so many ways. as a result, there is a need for a more modern way to deal with the land issues in the modern situation. Bibliography DOWDEN, Malcolm. Practitioners Guide to the Land Registration Act 2002. London, UK: Taylor & Francis, 2013. FRANCIS, Andrew. Restrictive Convenants and Freehold Land: A Practitioners Guide. New York, NY: Jordans, 2013. GREAT BRITAIN: Law Commission. Making land work: easements, covenants and profits á prendre. London, UK: The Stationery Office, 2011. HUDSON, Alistair. New Perspectives on Property Law: Obligations and Restitution. London, UK: Routledge, 2013. ROUTLEDGE. Land Law Lawcards 6/e: Sixth Edition. London, UK: Routledge,, 2009. THE LAW TEACHER. Assess the advantages of the current system. March 2014. 07 April 2014 . Read More