The Enforcement Rules: Land in England and Wales - Essay Example

The Enforcement Rules: Land in England and Wales Introduction Land in England and Wales is under the ownership of the crown and individuals are allowed to have estates and express interest in land. This explains why owners of estates, intend to ensure that they protect their ownership rights under all the circumstances. The first law enacted to govern the registration of land was passed in 1925. This law introduced formal procedures of registering land and defined the different interests associated with registered land. In 2002, the 1925 land law was amended putting into place a new law, which governed land registration. It emerges that most landowners have registered their land in accordance with either the 1925 law or the 2002 law. However, there is approximately 10-15% of land that is unregistered. Both registered lands and unregistered lands are governed by different sections of the land laws. Both laws need to be reinforced effectively in an effort to protect the landowners and govern all the transactions involved in the land. A close consideration of the process involved in enforcing rules related to registered lands and those related to unregistered lands reveals that there is a measure of superiority in enforcing the law that governs registered titles. This paper will provide reasons and justifications of the existing superiority in the protection of registered land. Land registration follows the Torrens system and registered titles denote land or ownership, which is available in the system. Each registered title has a unique number assigned during registration, which is used to identify the specific land in question as well as the owner. This is in accordance with the 1925 law and the land registration act in 2002. On the other hand, unregistered titles denote land that is not registered in the torrent system. Worth noting is the fact that the 1925 law had numerous flaws and ineffective. The 2002 Act was put in place to correct the flaws in the 1925 Act. The purpose of the 2002 Act was to ensure a fast highly efficient and inexpensive procedure of transferring ownership. It sought to get rid of the previous processes that delayed conveyance. In 1990, a serious order of ensuring that all land transactions are registered was given. Compulsory registration has contributed to the decreasing rate of the unregistered land. However, there are title deeds assigned to such lands (Great Britain 2011, p. 52). The 1925 law has operated for many years until the enactment of the 2002 land registration act. Upon the registration of a title, all the relevant information concerning the ownership and interests related to the title are included in the system. However, the 2002 version has more details on the interests that can be included during the registration process. People indulging in land dealings and transactions should understand the requirements of registration, the interests that should be disclosed, and those that do not need to be highlighted during registration. Benefits of Registering Titles The initial register used in the Torrens system was basically a paper record. However, with the emergence of technology, the modern day register is a database. The unique number given to the individual registering land is called a folio. The folio number has the dimensions of the land in question, its location and the related boundaries, and the full identity of the owner. Any transfer of ownership to the land described in the register must ensure that changes are made on the register effectively. This is because the identity of the new owner needs to be included in the register after a land transaction. Usually, transactions that warrant a change of ownership include the sale of land, death of the initial owner, mandatory court order and other events and situations that may prompt a need for transferring ownership (Great Britain 2011, p. 61). Most importantly, the registration process requires the owner to highlight all the legal interests affecting the land. The importance of this is to determine third party rights in relation with the owner. Notably, the land registration Act 2002, sought to bring a transformation in land transactions. This is because the registration system enables a much simpler process of conveyance. The Act intended to reduce the land transactions of unregistered titles. Notably, the availability of the system and the emerging of e-Conveyancing was not indebted to stop people from inspecting land physically or conducting other enquiries prior to purchasing any land. The availability of the e-register sought to provide a clear mirror of a registered title with all its interests. The land registration Act 2002 has a lot in common with the 1925 Act. This means that aspects of land registration that existed in the 1925 Act still have a place in the e-land registration Act 2002 (Great Britain 2011, p. 68). The 2002 Act governs registered land under three different categories. Section 27 describes the interests that can be registered while section 32 describes how interests can be protected through notices. The third category is available in schedule 3 and discusses overriding interests. On the other hand, unregistered land is a legal estate, but whose interests are binding to the entire world. The only exception is in the case of puisne mortgages. Under unregistered land, three types of interest exist. There are the overreaching interests, other interests registered as land charges in accordance with LCA 197. The third type of interests is those protected under the doctrine of notice. Under the system of registered land, the procedures and rules have been simplified with increased protection of interest and its operation proves to be a modern system. This is unlike the case of unregistered land, which relies on an old-fashioned system which is based entirely on names and proves to be temporary. Interests are protected under the doctrines of notice, an aspect that does not apply in the 2002 Act. Under the registered land system, an individual may issue a notice to protect rights while in the unregistered land system, land charges still apply as a form of protecting interests. The emphasis of title registration in accordance with the LRA 2002 has introduced certain benefits that did not exist previously. Conveyance has become much easier and simpler. Since the conveyance involves the transfer of ownership rights from one person to another, many buyers previously indulged in a cumbersome process prior to the actual transfer. With the fear of many fraudulent sellers, a buyer of land needed to establish the true ownership of the land in question as well as other interests affecting the land. Purchasers needed to undergo a rigorous process of checking the title deeds of the land, physical inspection, as well as an in-depth discussion with the seller. However, the emergence of the e-register provides purchasers with a one stop system that presents them with sufficient information that can influence their decisions on buying the title in question (Great Britain 2011, p. 82). Searching the title in the register should identify the owner and all the interests disclosed during the registration. This makes it easier for many buyers. The 2002 Act is more demanding of people registering their titles to disclose numerous third party rights that affect the title question. Conveyancing is usually referred to as the curtain principle in land issues. This is because a purchaser of a certain title can effectively rely on information available in the register without carrying out further research on the trusts affecting the title. Notably, purchasers who rely on the curtain principle, which is a provision in the torrent system do not rely on documents presented by the owner. Rather, they only need to consult with the certificate of title available in the register. In addition, land title registration is considered of critical importance because it strives to reflect the ground reality surrounding the title as much as possible. This is referred to as the mirror principle. Upon the registration of the title, the owner is issued with a certificate while the register bears the original registration certificate, which reflects all the relevant facts concerning the title. During registration, it is mandatory to provide sufficient information in an effort to fully describe the land in question so that it reflects all the reality and truth needed about the title. This means that a certificate of title has a measure of superiority compared to the title deed. Registration of titles also has the benefit of presenting any potential threats to the title. This is because human errors may occur during the registration process. This may create a barrier in the mirror principle because of the inaccurate information included. A purchaser of land, relying on the information in the system, which may be faulty, may suffer certain losses. Under the insurance principle, such an individual is subject to compensation by the specific state. This is because the error in the details of the land resulted from administrative failures of staff working in the system (Great Britain 2011, p. 132). The insurance principle ensures that nobody suffers as a result of errors occurring in the system. Dealings with Registered Estates The land registration Act 2002 outlines an extensive guideline on how to deal with registered estates. In the first place, the law makes it a duty for the individual registering a title to provide detailed information, especially surrounding all the interests associated with the title. However, the law established the basis rule, which allows the individual registering the land to have priority over the ownership of the land except in the presence of any third party rights, which came into place before the estate was registered. The basic rule is of critical importance in governing commercial and residential properties (Sexton & Bogusz 2013, p. 142). According to the special priority rule, a purchaser of an estate who makes efforts by completing the registration of the sale has superior rights, which deserve a priority over other existing third party rights during the time of registration. The only exception to the purchaser’s priority is in the case of a protected interest either through a notice, a registered charge or one included in the register. Notably, some interests may be unregistered, but may fall under the category of overriding interests (Sexton & Bogusz 2013, p. 132). In accordance with the rules of registration, the register should reflect all the interests related to the estate in question. This is an effort of making sure that a purchaser is not affected by third party interests that he did not take notice of. Protected Interests Protected interests denote third party proprietary rights that are highlighted in the register or that are protected through a notice. The 2002 Act presents a provision for the individual registering a title to present a notice of any interests of a third party that affect the estate in question. Moreover, the individual may choose to highlight them in the content of the title. On the other hand, interests may be protected in schedule 3 of the 2002 Acts, which describes the overriding interests of a third party. Notably, overriding interests listed in this schedule give the third party superiority over the purchaser of the estate. This explains why a purchaser should take keen interest in understanding all the overriding interests. For example, short leases, which are not registered are considered overriding interests. Although they are unregistered, these leases have a priority over the rights of the purchaser. The law does not require the registration of leases running for less than 7 years. According to the 1925 Act, leases that ran for less than 21 years were considered as overriding interests. Notably, the period of the short leases was immensely reduced in the 2002 Act. In addition, the interests of persons in actual occupation also fall under the category of overriding interests (Sexton & Bogusz 2013, p. 114). The 2002 Act provides details of the overriding interests o actual occupants of the estate or land in question. Other overriding interests include easements and profit a prendre, chancel repair liability, and other interests such as customary rights, local land charges, and public rights. Unregistered Titles and Overriding Interests On the other hand, unregistered titles are only protected under the common law. This means that an individual can only prove ownership by tracing back all the title deeds representing ownership from the initial owner to the current state. There are challenges in achieving this because of the passage of time and lack of proper documentations at some point. A third party with an interest in the land in question may easily challenge ownership and have overriding tights. Purchasers of unregistered land have a cumbersome research activity, which includes a rigorous consideration of an entire chain of title deeds in an effort to obtain security concerning the land in question. It is unfortunate that many purchasers of the unregistered titles face the risk of encountering multiple overriding interests, which are not detected at any stage of the purchasing process. This is because fraudulent surrounding unregistered titles are high in many countries (Sexton & Bogusz 2013, p. 123). Recent modifications of the common law have served to shorten the period of ownership that an interested purchaser may need to consider prior to purchasing land. In unregistered titles, overriding interests are protected through the doctrine of notice. The doctrine of notice provides, that the purchaser has priority over any third party interests, which do not qualify as land charges as long as they were not filed in either the actual, constructive, or imputed notice form (Sexton & Bogusz 2013, p. 86). The actual notice means that the purchaser had prior notice of the equitable third party rights. The constructive notice applies to equitable interests of the third parties, which the court considers that the purchaser should have become aware of. The imputed notice applies in a case whereby the purchaser’s agent had notice of a third party interest. In such a case, the purchaser is also assumed to be on notice of the same. As highlighted in the section above, numerous overriding interests that affect unregistered land. A Comparison of the Registered Titles and the Unregistered Titles As highlighted above, the land registration Acts were enacted to ensure that a form of stability does exist in Conveyancing on land. Prior to the laws, many purchasers of land and owners did not have a clear avenue of proving ownership of land. Therefore, introducing the Torrens registration system has served to create an entirely new system of ensuring that all land titles are available in a database. Each entity in the database has the unique number given to the owner upon registration. Details of the land in question, including location and boundaries are provided by the entity. The state has the responsibility of managing the register. Any purchaser of land in the registered title system only needs to consider records in the conclusive register without the compulsion to consult evidence from numerous documents (Sexton & Bogusz 2013, p. 91). Contrary to the registered title system, purchasers of the unregistered titles have to carry out a rigorous investigation of title deeds that have been issued with the connection to the land or estate in question. This rigorous investigation must establish the root of ownership in order to validate the current ownership. In addition, the unregistered title system offers an additional risk because the title deeds considered are not in any way guaranteed or verified by the state. This is unlike the case of the registered title system, which relies on a register protected by the state. In the registered title system, there is an evident protection of third party rights because of the provision of an entry of a notice or under schedule 3 overriding interests. This forms a legal basis, which can help third parties to have priority over the land in question. The unregistered title system does not offer a stable legal basis of protecting third party interests. It relies on the old doctrine of notice and third party rights are protected on the basis of names presented in land charge registration. It is evident that third party interests are more at risk in the unregistered title system. In addition, the registered title system does not compel an individual with an equitable third party right to register the interests through a notice. Evident protection is accorded depending on schedule 3 of overriding interests (Sexton & Bogusz 2013, p. 78). This is especially a benefit to actual occupants who are given consideration in the registered title systems. Therefore, the registered title system promotes social justice unlike the unregistered land system. Worth noting is the fact that the interests of the purchaser and those of a third party are protected in a straightforward manner as provided for in the 2002 Act. This is not the case in the unregistered title system, which requires extensive research and is based on names. The register developed in the Torrens system is conclusive and reliable, a factor that does not apply in the unregistered title system. Notably, under registered land, people who exhibit interest in land and are the actual occupants are considered t have overriding interests. This is contrary to the unregistered land system which does not protect the interest of actual occupants. This makes the rules applied to registered lands highly preferred because they offer increased protection. Conclusion Evidently, the land registration Act has introduced a superiority in the application of rules governing the registered land. The availability of a conclusive register protected by the state and that highlights sufficient information about the land in question, the registered title system, offers more protection to purchasers and third parties. The fact that an error occurring in the register is compensated effectively serves as more security for purchasers, estate owners, and third parties. Purchasers of unregistered land have an extremely difficult time because of the lack of a conclusive register that could be used in providing details of the land. Bibliography Great Britain 2011, Easements, covenants and profits à prendre, London: The Stationery Office. Sexton, R., & Bogusz, B 2013, Land law: Text, cases, and materials, Oxford: Oxford University Press. Read More