Through analysing the question it appeared important to cover the whole topic of land registration in order to understand the ‘Mirror Principle’ and its entrenchment in the English legal system. Relevant books were taken from Tremough Campus’s library and the library of the University of Manchester was also of great help during last my visit to my cousin in Manchester City. The most useful law source was the Law Commission which I accessed through ELE and Westlaw.
After identifying and reading the law sources I decided to approach the question in the following way: The first thing was analysing the history and development of the registration Acts and Status since 1862 until 2012, with discussing the development of each Act and the aims behind it. I then identified the structural classification to land in United Kingdom; and explained the three principles of the UK system to land registration, with concentrating on the ‘Mirror principle’, which is the most controversial among the three principles and the subject of concern of this essay.
After that I tried to cover the new legislation (LRA 2002) and identified the improvements and changes it made and that is how I came to the conclusion. Land registration isn’t a new concept, its dates back to the mid-19th century. The first statute to govern land registration was Land Registration Act 1862. Due to the lack of technological services, it led to the downfall of the first land registry mainly due to the fact that it was not compulsory to register. Furthermore, any further transactions were also not recorded. After that the Land Transfer Act 1875 was created to govern land registration.
It implemented several steps to improve the older one but yet, it failed, leaving land registration on a breaking point. In 1925 land registration took a giant leap with the implementation of 2 new legislation; Land Registration Act 1925 and Law of Property Act 1925. By 1950 it was said that the office had registered over one million titles and by 1963, about 2 million. However, registered land was still not open to the public. The development of technology led to an electronically based system which could provide registered land titles for the viewing of the public.
In 2002, a new piece of legislation emphasizing on electronic conveyance was created, which is the Land Registration Act 2002. Its aim is to have all marketable and transferable property in England and Wales to be registered by 2012. It replaced the old statute immediately but still applying the fundamental principles. The most obvious and structural classification to land in United Kingdom are between estates whom titles have been recorded centrally at a registry and estates which have not. This major difference dose not only effect how the system of the organization run, but it also have an effect on how their interest are protected.
Their very foundation rest on totally different grounds. For example, for unregistered land, titles are based on pragmatic prove of possession. While, for registered it is based on public registration done at the Land Registry. However, it does not mean that by a title of an estate being registered, every transaction is recorded. Hence, the clearest and obvious difference between both is the fact that for one, the title is registered whilst for the other, it isn’t. The United Kingdom’s system of land registration is underpinned by three principles: the insurance principle; the curtain principle, and; the mirror principle.
The insurance principle refers to the guarantee secured by the State that any loss incurred by a registered land resulting from reliance on the conclusiveness of the land Registry by a land purchaser will be compensated through a statutory indemnity system. The curtain principle, on the other hand, is the concept that land registration may allow certain equitable interests attached to the land hidden from a purchaser’s view. This ‘curtain,’ however, does not affect the validity of any transaction on the registered land so long as the details of the registration reflects the validity of the title.
Finally, there is the mirror principle which is the most controversial of these principles. The mirror principle simply means that the register should reflect the true nature of the title of the property concerning the rights and interest of the respective individuals. Hence, when an inspection of a register is done, it should reveal information such as “owner, the nature of his ownership, any limitations on his ownership and any rights enjoyed by other persons over the land that are adverse to the owner. The reason behind this principle is clear, by applying this principle; the purchaser would know the exact true situation or condition of the title of the property by simply reviewing the register whilst any other party can be certain that their rights will be protected. However, like mentioned above, this principle comes under heavy scrutiny as it isn’t fully complied with in United Kingdom. Even after the Land Registration Act 2002, the register doesn’t not give a clear indication as it is suppose to.
The problem arises from a set of rights which have an affect over the land and it is also binding over every party involved in the deal without being on the register. These set of rights are known as overriding interest or as later defined in Land Registration Act 2002 as ‘unregistered interest which override’ and can be found in the Land Registration Act in ‘Schedule 1’ and ‘Schedule 3’. However, the scope of rights which might have been included has been minimized since ‘Land Registration Act 1925’, but it still provides for a ‘crack’ in the mirror principle.
Yet, the inclusion of ‘overriding interest’ in both the LRA is not a mistake. Even though the purpose of registration is to ensure the register is clear like a mirror, it doesn’t discourage you or intend for the purchasers to not conduct a physical inspection of the property. Hence, it merely makes the task easier but not replaces it. Therefore, the LRA would encourage as many rights of the land to be registered and for those which are not, could be discovered by a simple inspection of the property by the purchaser.
Hence, if one is to purchase a property without inspection and realizes a right later on which could be discovered by a simple physical inspection, s/he would not have the right to claim unfairness and should comply with that right. The LRA discourages the purchasers from being ignorant about the land they are purchasing. Furthermore, certain minor details or rights such as a one year lease are impractical to be entered into the register. All in all, the mirror principle isn’t accurately followed but the Land Registration Act 2002 has ensured it almost is.
For example, the statute has limited the number of rights which can override as compared to the Land Registration Act 1925. A common example is equitable easements which could override in the past can’t anymore under the new law. Even when there is actual occupation on a land, the Land Registration Act 2002 gives necessary chance for discovery without much hassle. To add to this, the Land Registration Act 2002 intends to add on the number of details which can be registered once the e-conveyancing system is up and running. Hence, as stated in section 71 of Land Registration Act 2002, there is a uty of the people to ensure every unregistered right in a land should be registered to further improve the system. The citizens can’t expect the 24 offices around the country to discover millions of details about a particular land without the help of the people. The Land Registration Act 2002 made five main changes to improve the older one, these changes are in what concerns the; charges, notices and restrictions, overriding interest and e-conveyancing. The scopes of interest which can be registered have been extended with the inclusion of profits a prendre in gross and franchises.
This can be seen under section 2, while section 3 and 4, raises matters which are to be voluntarily registered and compelled under compulsory registration. Thus, it can be clearly and concussively said that the events that require compulsory registration have lower standards in the newer act hence requiring more details to be registration giving a clearly picture to the purchasers and public for viewing. One very common example is the fact that the newer act will detect leases of more than 7 years which use to be 21 years and above in the older act.
Hence, most commercial leases which are usually for an average of 15 years to be registered. Therefore, the act increases situations where unregistered land must be registered. To add to this, Lord Chancellor is given statutory power to amend events that raise compulsory first registration under section 4 of LRA 2002. The older act which provided cautions against first registration in a manner where if an individual having some interest in the land would be notified if an application has been made for the land’s first registration.
The next change is the introduction of notices and restrictions. Some examples are easements, restrictive covenants or burden of leases. A restriction on the other hand governs situations in where the nature of an estate which is registered or charge may be forced upon entry on the register. Hence, if a trustee has a limitation placed upon his powers, this must be recorded and shown on the register. This would provide a clearer picture to the purchaser about the land he is about to purchase which would further push the use of mirror principle. Another change is regarding harges. For example, it has prospectively abolished charges by way of sub-demise and demise. Furthermore, it has also changed the set of rules in regards to the importance of further advances if in any case the property is subsequently charged. The main change effected by this act is to apply the current practice whereby lenders take it on themselves to inform prior chargees of any further and subsequent charge made based on the land, hence, this would hinder the prior charge from giving out any future advances on the security of his earlier charge.
Furthermore, a registered chargee can make future advances on his security of a charge ranking in priority if by any chance the parties involved have agreed to an amount for which the charge is security and that amount would be added to the register. This would provide for clarity and further prove the push towards the mirror principle as even charges could be included. The next change is regarding overriding principle which has been the centre of the bone of contention regarding registered land.
Overriding principles have always been seen as a clear breach of the mirror principle as it is almost impossible of a register to show the true nature of the land but however, it was not abolished and removed in the LRA 2002 because; ‘most overriding interests do appear to have one shared characteristic, however, that is related to the orthodox explanation of them, namely that it is unreasonable to expect the person who has the benefit of the right to register t as a means of securing its protection’.
The LRA 2002 acted to reduce the number of overriding interest in a bid to provide as much transparency on a register as possible particularly regarding those that affect registered dispositions. To add to this, overriding interest regarding actual occupation has also been given a clearer picture. Hence, for an overriding interest to be binding, the claimant must have been in actual occupation at the date of the disposition as stated in ‘Abbey National Building Society v Cann’.
This was also seen in ‘Bristol Building Society v Henning’and ‘Paddington Building Society v Mendelsohn. However, it could not at the same time completely remove it all together as well because of those rights which were created on land informally. Hence, all in all, there needed to be a balance between justice and certainty. Steps have been taken to encourage registration of these interests as provided by under section 71(a). The next change is probably the biggest change being introduced by the LRA 2002 which is to transform United Kingdom registration into e-conveyancing.
It has been a good 7 years since the act was created but yet, no signs of it taking place. The act does have the power to force the use of electronic conveyancing but it is not likely that such stern powers would be used, well at least not anytime soon. Furthermore, the Land Registry is not prepared to undertake such a major shift. But then again, the Law Commission has stated vigour sly in various articles recommending that the period when transition takes place between the two systems should be kept to a minimum in order to avoid any disruption.
To conclude, there are certain situations which are clearly against the concept of the mirror principle but the Land Registration Act 2002 has minimized this to an almost nil providing for the fullest and almost complete coverage of protection for the purchaser and the individuals whom might have interest in the land. Hence, it can be said yes, the principle might not be followed at full but it is still very much applicable and once the e-conveyancing system is up and running, the principle would be almost fully entrenched into UK land law.
Courtney from Study Moose
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