Land Registration in England: A Millennium-Long Journey from the Doomsday Book

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The English colonial rulers, who wrote land registration laws in about half of the countries of the world, struggled for about a millennium to establish a credible land registration system in their own country. It is unbelivable that, in England till 1925, land transactions were a private affair between the two parties without any registration (except in two counties) with any public authority. Even after introduction of land registration in 1925, it could be made compulsory in whole of England by 1990 only. So when the English rulers drafted registration laws in their colonies they hardly had any experience of writing such laws. In this article the tortuous journey of England to establish a land registration system has been traced. The experience of England with various land title registration laws introduced in the course of history has also been analysed.

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The United Kingdom of Great Britain and Northern Ireland (UK) consists of four distinct administrative units England, Wales, Scotland and Northern Ireland. These units (sometimes called countries) have different property laws and procedures. England and Wales use the same property law, referred to as English property law. Northern Ireland also uses English property law but this law is subject to the legislation of its own Parliament. The property law of Scotland, however, is quite different.[1] The subject matter of this article is the English property law as applicable to England and Wales.

Doomsday Book- First Register of Titles

The origin of English land law dates back to the Norman Invasion of 1066 CE when a feudal system of land holdings was introduced by King William, the Conqueror. Under this system, all land belonged to the King and was given to ‘tenants’ in return for certain obligations to the King. These tenants could further create sub-tenancies over this land. English property law evolved across the centuries in England under this peculiar feudal system of land ownership.

King William in 1086 CE conducted a detailed survey of the land in England and compiled all land ownership and rights along with its value in a register which is popularly called the Doomsday Book (also written as Domesday Book). It was the first title register of England. Though it was far from the sophisticated title registers of today, it was a remarkable administrative accomplishment of the Middle Ages. However, this record of land ownership was never updated afterwards because there was no system for recording the transfer of ownership in England.

Property Transactions in Medieval England

Originally under English law, a freehold land could be transferred by performing a public ceremony of handing over the possession of land in the presence of witnesses, called ‘feoffment with livery of seisin’. Later, conveyance by a deed was allowed under the Statute of Uses [2]. In England, the landed gentry with the help of their talented lawyers constantly avoided any public recording of land transactions. History of registration in England is, in a way, an account of a battle of wits between the landed gentry and the government.

To avoid publicity of land transactions, the landed gentry invented an ingenious concept of ‘use’ in the 14th century. A person could convey his land to another person for the ‘use’ of a third person. The third person became the equitable owner without the legal transfer of land in his name.  A person could also convey his land to another person ‘for his (original owner’s) own use’.

In such an arrangement a person, while enjoying the full benefit of land was saved from other liabilities of the feudal system like death duty, forfeiture of land due to treason, disposal of land to pay creditors etc.  The creation of ‘use’ did not require any publicity or formality like ‘feoffment with livery of seisin’ and therefore, such transactions could be done in complete secrecy, which English landowners wanted to preserve at any cost.

Failed Attempt to Introduce Registration of Property Transactions

To control such transactions, Parliament enacted two statutes in 1535 CE. 'The Statute of Uses' abolished dual ownership and an equitable owner was made the legal owner of the land. 'The Statute of Enrolments required that a freehold land can be conveyed ‘by bargain and sale’ only through a deed which was to be enrolled in the specified courts. The Statute of Enrolments can be regarded as the ancestor of the Registration Act in England.

However, English lawyers devised a method of ‘lease and release’ to avoid enrolment of transfer of land under the Statute of Enrolments. The Statute of Enrolments provided for mandatory enrolment of deeds for transferring freehold rights but it did not impose this condition on the leases. A land owner would first create a lease on the land which did not require a deed or a public ceremony. Then, after some time freehold ownership was passed through a simple release deed. The whole process conveniently bypassed the Statute of Enrolments and preserved the secrecy of the transaction.

The Statute of Uses also became an instrument to circumvent the Statute of Enrolments. First, an equitable ownership was created which did not require any enrolment of deed or public ceremony. Later this equitable ownership was converted into legal ownership by operation of the Statute of Uses. Thus, the Statute of Uses had the unintended result of making it simpler to transfer land without publicity.

Establishment of Deed Registries in Yorkshire and Middlesex

After the failure of the Statute of Enrolments, in the following three centuries, there were more than 20 attempts to pass a land registration bill in the Parliament which did not succeed. The only success in this direction was the establishment of local registries for the registration of deeds in the counties of Yorkshire and Middlesex between 1703 CE and 1735 CE. However, no central registry for the whole of England could be set up to do away with the evils of concealed land transactions.

In the rest of England, transaction in the property remained a private affair closely guarded from the public eye by the land aristocracy which opposed any kind of registration of the transaction in a public record. The lawyer of the prospective buyer of a property would investigate the title of the seller by examining all the previous conveyance deeds retained by the buyer. If no defect was detected in the title of the seller, a deed would be executed to complete the sale. On completion of the sale, all the previous sale deeds would be handed over by the seller to the buyer who would retain them as proof of his title for future transactions.

The Advent of Registration of Title

A Royal Commission was appointed in 1853 to consider the introduction of registration of title in England which submitted its report in 1857. Based on this report, the Land Registration Act of 1862 was enacted in England. The registration of title was kept voluntary under this law. It was expected that landowners would come forward for registration of titles of their existing land to make future transactions simple and economical due to the certainty of the title. Contrary to this expectation, only 547 applications for registration of title were received and only 349 of them could be registered from 1862 to 1869. There were complaints of high costs and excessive delays in registration under this law.[3]

Another Royal Commission was appointed to go into the reasons for the failure of this Act. On the recommendation of this Commission a new statute, the Land Transfer Act of 1875, was enacted. Under this law also land registration was not made compulsory. This Act was even less successful. Only 113 titles were registered in the next ten years after the enactment.

To remedy this situation, the Land Transfer Act of 1897 was enacted. Under this law, a County Council could make registration compulsory in any area within its jurisdiction. However, registration was made compulsory only by the County of London in 1902, leaving it to remain voluntary in the rest of England.

Again, a Royal Commission was appointed in 1908 to consider the defects in the 1897 Act. This Commission in its report submitted in 1911 concluded that the root cause of the failure of registration was the complexity of archaic English property law. It recommended that registration will not be successful unless substantial reforms are made in the English property law.

Reforms in English Property Law

A committee of the House agreed with the recommendation of the Royal Commission of 1908. Consequently, sweeping changes in English property law were made in 1925 by abolishing and amending many old laws and enacting six new laws.

1.     The Land Registration Act 1925- to provide for registration of titles to the land.

2.   The Law of Property Act- dealing with estates, trusts, co-ownership of land, contracts and conveyances, formalities, leases and tenancies in outline, and burdens such as mortgages, easements and covenants, and also important definitions.

3.     The Settled Land Act- dealing with landed estates.

4.     The Trustee Act- to regulate the powers and duties of trustees.

5.   The Land Charges Act- to regulate the registration of burdens against titles which are unregistered.

6.  The Administration of Estates Act- to lay down the system of intestate succession and the procedure for handling estates of the deceased.

The Land Registration Act 1925

The most important feature of this law was the power of the government to extend compulsory registration to any county after 10 years of enactment. Before that period compulsory registration could be extended to a county with the consent of the county council only. The compulsory registration under the new registration law was gradually extended across the country and by 1990 the whole of England and Wales were brought under compulsory registration. However, the registration was made compulsory only at the time of the next transaction. The existing owners were not required to register their title until the property was transferred to someone else. Thus, England like Australia avoided registration of titles of existing owners which is a very cumbersome task.

Finally, England had a modern title register about a millennium after the first such record was compiled by King William, the Conqueror.

The Land Registration Act 2002

In 1996, the Law Commission and HM (His Majesty’s) Land Registry undertook a joint exercise to update and reform the law relating to land registration. Based on the report of the Law Commission, the Land Registration Act 2002 was enacted repealing the Land Registration Act 1925. Like before, under the Land Registration Act 2002 also the registration of title is compulsory only at the time of transfer of an unregistered estate by way of sale, gift, inheritance, etc. There is no compulsion for the present owner to get his land registered until he decides to transfer it to someone else. The essential features of land registration in England are discussed in the following paragraphs.

Process of Registration

Land registration in England is conducted by the HM Land Registry which is an independent body set up under the Land Registration Act 2002. In every district, there is a District Land Registry headed by a registrar. Under English law, multiple estates can be created over the same physical piece of land. For example, if a piece of land is owned by a person on a freehold basis, it will form a freehold estate over that land. If the owner leases out this land to someone for more than 7 years, the lessee will hold a leasehold estate on the same land. Further, on every sublease of this land, a new estate will be created. Every estate can be registered as a separate title in the registry. In the title register, the land is described mostly through postal address, supplemented by a title plan drawn from the Ordnance Survey maps.

Boundaries

In England, boundaries of private properties are not accurately described in the title plan of a property kept in the Registry. The maps in the records of the registry show only a ‘general boundary’ and not the exact legal boundary[4]. Boundaries are required to be settled by the neighbours themselves either by an agreement or by approaching the civil court. The Ordnance Survey or Land Registry are not legally authorized to depict the legal boundaries of private properties. However, landowners can apply for registration of a ‘determined boundary’ between their properties following the prescribed procedure[5] .

Conclusiveness of Registered Title

Towards conclusiveness to the registered title, the Act provides that a legal estate shall be deemed to be vested in the registered owner even if it would not otherwise vest in him[6]. This means that if a person is registered as the owner of an estate in a land, his title cannot be questioned based on any defect in the title before registration. Even if a person is registered as an owner on the strength of a defective title of the seller, the legal estate would vest in him by registration.

Making an important improvement over the 1925 Act, a registered owner, under the Land Registration Act 2002, has been conferred with unlimited power to dispose of an estate if there is no entry of charge, notice or restriction in the register[7]. The title of the buyer is protected even if any limitation to the power of the owner is discovered later[8]. These provisions of the law provide conclusiveness to the title of the registered owner and protection of the title of a bona fide buyer. However, the overriding interests and provision of alteration and rectification in the title register put limitations on the conclusiveness of registered titles.

Overriding Interests

As per ‘mirror principle’ laid down by Ruoff[9], all the interests in a property should be recorded in the title register and nothing should exist outside it. However, in England, all the interests are not recorded in the register. The registration law does not provide any guarantee or indemnity against these interests which are called ‘overriding interests’, as these override the entries in the title register. A few examples of such interests are; the rights of a person in actual possession of the property, lease of term less than seven years and fishing, shooting or hunting rights over a land. A buyer has to discover and take appropriate action to protect himself from any adverse impact of such overriding interests. England has been trying to reduce overriding interests since 1925 when major changes were made in the property law there. Despite these efforts, the Land Registration Act, 2002 has a long list of over-riding interests.

Alteration and Rectification in the Register

The joint Report of Law Commission and Land Registry submitted before the enactment of LRA 2002 states that ‘it will be the fact of registration and registration alone that confers title’. This statement conforms to the fundamental principle of title registration that registration is the conclusive proof of title. This principle is contained in sec. 58 of the Act which states- ‘If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration.’

However, sec. 65 together with schedule 4 of the Act introduces another principle which erodes the conclusiveness of registered title. The provisions regarding alteration and rectification in the title register on the grounds specified in Schedule 4 make a serious dent in the conclusiveness of a registered title. Making a provision for alteration and rectification is effectively a statement, that the register can be wrong. Such a provision does not go well with the overall scheme of making the register conclusive proof of title.[10]

Indemnity by the State

If a person suffers loss of his property due to any mistake in the register, he is provided compensation by the state. Indemnity is also payable to the person who suffers loss due to rectification of the register. No indemnity is payable if the loss was suffered as a result wholly or partly of the claimant’s own fraud. If the loss was suffered as a result of the claimant’s lack of proper care, then the indemnity payable is reduced to the extent that it is fair having regard to the claimant’s share of the responsibility for the loss.

In England, an aggrieved person can directly file his claim before the Land Registry without any need to go to a civil court. If his claim is not accepted by the Land Registry, he has the right to appeal in the civil court.  Contrary to this liberal provision, in Australia, an aggrieved person gets compensation from the Assurance Fund only if it is not possible to recover his loss from the defaulter through the civil court. 

Present Status of Registration in England and Wales

It is noteworthy that title registration laws were enacted almost at the same time in Australia and England. While registration was immensely successful in Australia, it had a rough journey in England. It took more than a century to achieve the first milestone of making registration compulsory in the whole of England and Wales. The job is still far from complete. It is estimated that around 86 per cent of land in England and Wales is now registered, leaving about 14 per cent of land still unregistered.[11] 

Presently, an exercise of making appropriate changes in the Land Registration Act 2002 is underway. The Law Commission submitted a report ‘Updating the Land Registration Act 2002’ in 2016. The Commission has observed that ‘time has shown that some aspects of it are unclear, or inefficient, or have unintended outcomes. Additionally, the landscape within which land registration operates has changed considerably since the LRA 2002 came into force. We have seen an increase in incidents of fraud relating to registered land, the legal consequences of which have been difficult to resolve. Technology has not developed in the way that was predicted at the time of the legislation, casting doubt on how well the current Act facilitates electronic conveyancing.’[12] This report is under consideration by the Government.

Experience of England with Title Registration

In its journey of about one-and-a-half century towards the establishment of a registration system, England has deployed the best of intellectual resources through several house committees, Royal Commissions and Law Commissions, to achieve the goal of indefeasibility of a registered title. However, England is still far away from achieving ‘title by registration alone’ and ‘indefeasibility of registered title’ which was established in the states of Australia right in the beginning when Torrens laws were first enacted.

The title registration system is based on the premise that an entry in the register of title is conclusive proof of title. If this is so, there should be no necessity to rectify an existing entry in the register. However, in practice, there are many circumstances under which a wrong entry finds a place in the register and a genuine right holder is deprived of his right without his faults. This may be due to a genuine mistake of the registrar or a fraud played by some person.

In England, courts have been accepting cases challenging the ownership of a registered title holder. In many cases, courts have decided that the registered owner may hold ‘legal estate’, but the beneficial owner of the estate is that person who, in the opinion of the court, was deprived of his ownership due to a wrong registration. In addition to civil courts, the registrar is also empowered to rectify the register to correct mistakes and restore the property to the genuine right holder. Indemnity is provided to the person who suffers because of this rectification.

In Australia, the register is rectified in very rare cases and that too on the orders of a civil court. The civil courts also generally maintain the sanctity of the register and do not interfere often. In Germany, the register is not corrected by the registrar but the parties are advised to settle the dispute through the civil court.

Another feature of English law is the existence of a large number of unregistered ‘overriding interests’ which compromise the sanctity of registered titles. In Australia also, there are many ‘subsisting interests’ which affect the rights of a prospective buyer but are not recorded in the title register. In Germany, however, there are no hidden rights which are not recorded in the title register.

There are many scholarly studies on the reasons for the different levels of the success of title registration in Australia and England which give a wide spectrum of opinions on this subject. However, it is an undeniable fact that there was a huge difference in the type of land tenure, law relating to property, structure of the courts and socio-economic conditions of the two countries at the time of the introduction of the title registration law. The experience of England establishes very clearly that the success of title registration depends on many other ambient factors external to the Registration Act per se. The substantive law on property and the approach of the courts immensely influence the actual implementation of title registration in a country.

Any country planning to switch over to title registration must be very careful in assessing these external factors and take suitable action to deal with them simultaneously to avoid failure later. The difference in the title registration laws of England and Australia also indicates that there can be many variations of title registration law to suit the prevailing conditions in different countries. So, while introducing title registration in a country, there has to be a conscious decision regarding the degree of affirmation to be provided to the register and accordingly, provision of rectification is to be drafted.

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References 

[1] Simpson, S. Rowton. Land Law and Registration. London: Surveyor’s Publications (part of the Royal Institution of Chartered Surveyors), 1976

[2] Mayer, P., & Pemberton, A. (2000). A short history of land registration in England and Wales. Land Registry.

[3] ibid.

[4] Section 60, The Land Registration Act 2002

[5] Boundary agreements and determined boundaries, Practice Guide 40, HM Land Registry, England.

[6] Section 58, Land Registration Act 2002

[7] Section 23, Land Registration Act 2002

[8] Section 26, Land Registration Act 2002

[9] Ruoff, Theodore B. F. “An Englishman Looks at the Torrens System.” Australian Law Journal, 1952

[10] Gardner, Simon. “The Land Registration Act, 2002—the Show on the Road.” The Modern Law Review, 2014: 763-779

[11] Updating the Land Registration Act, 2002: A Consultation Paper, Summary.” Law Commission, England, March 2016.

[12] Updating the Land Registration Act, 2002: Report of Law Commission, Engand, July 2018