Research and anecdotal evidence suggest that one area of the syllabus that causes some students particular difficulties is that of mortgage and property law. Much of this subject has been covered previously in this column, including matters such as freehold and leasehold estate, easements and covenants. However, land registration has not been covered before and it is this topic, at least as far as it applies in England and Wales, that will now be considered.
The purpose of land registration is to complete, simplify and maintain an ongoing and continuous record of ownership of land. In England and Wales this is the responsibility of the land registry. In Scotland, it is the responsibility of the registers of Scotland.
Land registration dates back to 1897 and has been progressively implemented throughout England and Wales by various pieces of legislation, the main one being the Land Registration Act 1925. Land registration has been compulsory for all transfers of land in England and Wales since 1990 and so, in theory, all land will eventually become registered. However, unregistered land will remain as such until it changes hands and, in some cases, this will happen infrequently, if at all. For example, land belonging to national and local government, the National Trust, etc. rarely, if ever, changes hands.
For registered land, The Land Registry holds details concerning registered land on three registers:
Property register. This gives details of the land, its title number and a plan of the property. Easements that are beneficial to the property, e.g. where a property has a right of way over another property, are also included. A property which possesses a right over another is known as the dominant tenement. The property over which a right is held is the servient tenement.
Proprietorship register. Details include the name and address of the owner, the nature of the estate, i.e. freehold or leasehold and the class of title. Classes of title include, for example, 'absolute' – where clear title has been established (the best form of title available), and 'possessory' – where clear title cannot be established, often because some, or all, of the title deeds are missing.
Charges register. This records any charges over the property. The most common type of charge is the registration of second and subsequent charges over a property by mortgagees, i.e. second and subsequent charges. These are known as puisne mortgages and are, quite simply, legal mortgages where the lender does not hold the title deeds. Naturally, a lender with a first charge over the property will hold the title deeds as security and will place the charge certificate with the deeds.
The notification of spouses' interests under the Family Law Act 1996 is another relatively common form of charge contained within the charges register. There are properties where only one partner in a marriage is the registered owner. This may apply, for example, to older owners who married and bought a property when it was more accepted for the husband alone to be the owner. There are also properties owned by husbands/wives who met their spouse having already purchased a property. The Family Law Act 1996 provides the right of a 'non-owning spouse' to register an interest in the property. In effect, this will prevent the property from being sold or transferred until the spouse's notice of interest is removed.
'Unregistered' land is, of course, land that has not been registered. In order to discover details about the property and proprietorship a search will have to be made of the title deeds.
Rights over registered land are registered in the Land Charges Register. This is, quite simply, the equivalent of the Charges Register that applies to registered land, as mentioned earlier. The most common types of charges registered against unregistered land are the same as those in respect of registered land, i.e. those of second and subsequent mortgagees – puisne mortgages – and the registration of spouses' interests.