THE LAND REGISTRATION ACT 2002

The Land Registration Act 2002

The Land Registration Act 2002

Introduction

Interests in land that cannot be registered as separate titles are either overriding interests or interests which need protection on the register. Overriding interests are enforceable without being protected on the register and bind a registered proprietor and his transferee despite the fact he does not know of their existence. This means overriding interests effectively detract from the principle that the register should be a mirror of the title. Under the old regime of the Land Registration Act 1925, overriding interests were listed in section 70 (1) which states these to be “all incumbrances, interests, rights, and power not entered on the register but subject to which dispositions are to take effect.”

If however, an overriding interest appears on the register (as in Re Dance Way, West Town, Hayling Island) then its protection under this category is superfluous. It will cease to bind as an overriding interest and its protection is then the protection of a minor interest on the register.

The grounds for reform of overriding interests contained in the Land Registration Act 2002 (“LRA 2002”), arose as a result of criticism of the category of overriding interests under the Land Registration Act 1925. Overriding interests caused uncertainty and have been the subject of several reports attempting to deal with the problems, culminating in the LRA 2002.

As illustrated in Overseas Investment Services Ltd v Sim Cobuild Construction Ltd judicial opinion was also one for change. In this case Peter Gibson LJ stated, “as overriding interests constitute an exception [to the mirror of title principle] the court should in my opinion, bet be astute to give a wide meaning to any item constituting an overriding interest.”

The LRA 2002 aims to create an electronically based conveyancing system where it will be possible to investigate title online with minimum additional enquiries. A major obstacle to achieving this is the existence of overriding interests.. The LRA 2002 has therefore reduced the circumstances in which overriding interests can exist. The policy behind the Act is that interests should only have overriding status where protection against buyers is needed, but where it is neither reasonable to expect nor sensible to require any entry on the register. With the advent of electronic conveyancing the circumstances in which overriding interests can arise will be reduced. This is because expressly created rights will only be created through simultaneous registration.

In addition to electronic conveyancing, the LRA 2002 adopts four approaches for handling the problems associated with overriding interests, which are:

1. The abolition of certain rights which can exist as overriding interests, including the liability to repair the chancel of a church. Abolition follows the Court of Appeal decision in Aston Cantlow Parochial Church Council v Wallbank which held that chancel repair liability contravenes the European Convention on Human Rights and is therefore unenforceable. The LRA 2002 also affects the rights of those acquired by squatters under adverse possession. It introduces an entirely new scheme of adverse possession for registered ...