The Doctrine of Notice Lecture

OVERVIEW

In this guide on unregistered land, you will notice several elements. First, there is relatively very little case law. Much of what is discussed here forms part of the common knowledge of unregistered land, meaning that you would not be necessarily expected to provide exact sources for your main points when discussing unregistered land.

Those main points are given here in brief and are discussed in detail further below:

  1. To take ownership of land, the purchaser needs to show “good root of title.”
  2. This process contrasts with showing title for registered land.
  3. There are different types of rights in relation to unregistered land: in particular, the rights of the persons that occupy the land without their rights having been registered.
  4. The doctrine of notice applies to unregistered land, not to registered land.
  5. The advantages of unregistered land tend to focus on its protection of overriding interests.
  6. The disadvantages of unregistered land are about the onus and uncertainty it imposes on purchasers.

This guide is split into four parts. The first part is an introduction to unregistered land: what unregistered land is, how it is proven, and - briefly - how those people in possession of unregistered land may protect their rights. The second part discusses the different types of rights that a person with unregistered interests can have, and how those different types of rights can be protected. The third part discusses the concept of notice within the context of unregistered land. The fourth part discusses the advantages of unregistered land, and the disadvantages of unregistered land. The fifth part discusses unregistered land in the context of adverse possession.

PART ONE: INTRODUCTION TO UNREGISTERED LAND

Unregistered land is any land which does not have a record of title in the Land Registry. Unregistered land forms an ever-decreasing minority of the land in England and Wales. It is decreasing because there has been a long, if gradual, effort to register all portions of land in the jurisdiction. Although registration is not always compulsory, certain “trigger events” can make it compulsory, such as the sale of the land. Indeed, any transfer of land that fails to register the land is automatically void (Land Registration Act 2002, ss. 6(4), 7(1)). That said, it was originally anticipated that all land would be registered by 1955, and that has not happened.

For unregistered land, title is proved by title deeds. The documents which prove the history of title over property are described as the ‘essential indicia of title’ (Sen v Headley [1991] Ch. 425 per Nourse LJ). These documents, so-called “deeds bundles”, should identify the person who currently holds the best “title” to the land. When a party looks to purchase that land, they are required to look at least at the previous 15 years in order to show a “good root of title.”

In other words, the purchaser must be able to demonstrate a clear chain of conveyancing relating to the property, up to and including the present person in possession of the property. The rights these persons in possession have over the land may or may not bind a purchaser depending on two factors: the nature of the right, and whether it has been protected.

Examination consideration: if unregistered land comes up in a problem question, you should be immediately reminded of this central aspect of unregistered land: that instead of simply producing a document showing title, there has to be a “deeds bundle” which shows, going back at least 15 years, that the person claiming to possess the property actually has “good root of title.” If they cannot, this should be a clue to you as to how the parties in the problem question can proceed.

It should be stressed that the distinction between registered land and unregistered land is substantial. In the case of Lloyds Bank plc v Carrick(1996) 28 H.L.R. 707 the court reached a conclusion based on the land having been unregistered, namely that an unregistered contract did not grant the legal estate in the property in question despite the seller saying the title was valid. Notably, Morritt LJ said that if the land were registered, the outcome of the case would have been entirely opposite. The mere act of registration can therefore alter the rights of parties immensely.

Most rights have to be protected by the use of the Land Charges Act 1972. Using the 1972 Act, the rights are registered as charges. The Land Charges Act 1972 was the successor to the Land Charges Act 1925, and the 1925 Act had been intended to gradually introduce a system of registration to land. It was envisaged that the registration of land in England and Wales would be a slow process, therefore a temporary system was introduced to protect third party rights in unprotected land.

“Can a person still claim to have a right to the land without obtaining protection by documentary evidence?”

In some instances, yes. A person can claim ownership of the land by relying on the fact of their having occupied and possessed the property. In this instance, they are not relying on a paper title, but instead are expected to testify, by means of a ‘statement of truth’ or some other statutory declaration that they have sustained possession over the land. They would do so under the Statutory Declarations Act 1835, and this approach is sanctioned by the Land Registration Act 2002, s.9(5).

Examination consideration: The central idea is that rights can and ought to be protected. It is easy to anticipate, in a problem question, that an occupant of land has much physical evidence of their having lived on the land, but do not have the relevant documentation. You would be asked: to what extent does the fact of their occupation and possession of the land outweigh their lack of paper title?

PART TWO: TYPES OF RIGHTS

This discussion on unregistered land must also consider the interests of the parties that occupy land from time to time. Certain proprietary entitlements are allowed to exist ‘off the register’, meaning they are not recorded in the Land Registry. This is a concept known as “the crack in the mirror.” The so-called “mirror” is the reflection of the paper record (the entry in the register) to the corresponding right over the given estate in land. These rights are classified as ‘unregistered interests’ and are deemed to be ‘overriding interests’, meaning they can bind subsequent purchasers of the land.

The Land Charges Act 1925 was intended to protect the rights of those with unregistered interests in one of three ways:

  • Legal rights - these rights bind the whole world and do not require any further protection.
  • Equitable rights - these form two of the three ways in which the 1925 Act protected third party rights. Equitable rights no longer protected by the doctrine of notice. These are registrable either (1) as land charges if they are “commercial interests”, or (2) should be “overreached” if they are “family interests.” These rights do not bind a purchaser, however the interests are to be reflected in the purchase price, i.e. the satisfaction of these rights will impose a higher financial cost on the purchaser.

There are exceptions however to these categories of legal and equitable rights, and it is here where the ancient doctrine of notice still applies. They are:

The Land Charges Register, which comes from the Land Charges Acts, provides different “classes” of third party interests, from Class A (charges created by a person applying under a statute) to Class F (Matrimonial rights). If an interest ought to have been registered as a land charge and was not, then the interest will be void against nearly all potential purchasers of the land (Hollington v Rhodes [1951] 2 All E.R. 578.

Class F is the type of class which you are most likely to encounter in a problem question. Class F is a spouse’s statutory rights to occupy the matrimonial home. As with any other of the classes, if a spouse had a right to occupy the land, but the Class F land charge was not registered, then such a right will be void. And this remains the case even if the purchaser knew about the unprotected interest (Midland Bank Trust Co Ltd v Green (No. 1) [1981] A.C. 513). Statutory authority for this is found in s.199 of the Law of Property Act 1925.

Case in focus: ER Ives Investment Ltd v High

H and X were neighbouring freehold owners of unregistered land. X began to construct on his property a block of flats, the foundation of which encroached to a degree on H’s land. H waived his right to complain of trespass when he was granted, in writing - but not by deed - a right of way for his car across X’s yard. H never registered his equitable easement against X as a Class D(iii) land charge, but subsequently built a garage on his own land which was accessible only across X’s yard. H also contributed part of the cost of resurfacing the yard. X later sold and conveyed the land in which the yard was found to Y. Y had full knowledge of the above facts. Y in turn conveyed the land to ER, expressly subject to H’s right of way over the yard. The Court of Appeal held H’s rights, despite their non-registration, as enforceable against ER. The majority agreed that H’s equitable easement was statutorily void for non-registration, but ruled that ER was estopped from pleading non-registration as a basis for their case against H, because of the known history of acquiescence to H’s right of way over the land. Even though H’s rights derived from an informal grant and was ineffective by reason of their non-registration, his rights as a result of subsequent circumstances were not registrable in any event under the Land Charges Act, so they comprised an ‘equity’ binding all subsequent purchasers who took the land with actual notice.

Key points from ER Ives Investment Ltd v High

  • Non-registration of a right over land, such as a right of way, is usually grounds for refusing to enforce the underlying right.
  • However, there is reason to consider that the right may be enforceable if the right could not be registered, and if the subsequent circumstances indicated that the parties were aware of the right so claimed.
  • What the subsequent circumstances are will always be case-sensitive. In this instance, the circumstances of the right of way were communicated to every subsequent purchaser, and indeed X had even assisted in the maintenance of the land for the benefit of H’s easement.

Note that all the various classes are only void in certain circumstances; in the case of Class F, if the spouse’s right to occupy is unregistered at the time the property is purchased, that right to occupy is void against anyone who gives value in exchange for the interest in the land. This couples up with what is said above about equitable rights, in that the value of the interest is reflected in the purchase price.

Conversely, a notice that is registered binds everyone, according to s.198 of the Law of Property Act 1925. Therefore, even if a purchaser does not find the notice in their search, they are still bound by it.

Examination consideration: Remember to look over the exceptional categories for how rights may be protected. Remember the important proviso that a purchaser of title can take ownership of the land, even though there are overriding interests, if the value of those interests are adequately compensated in the purchase price. How do you think this may appear in an exam? Might this issue of who takes ownership appear in a problem question, for example?

PART THREE: NOTICE

It is important to note that some rights are still governed by the old doctrine of notice, which is not without its problems. This doctrine is employed as a kind of stopgap, because there are some rights which are not registrable as land charges yet would have been recognised prior to the 1925 and 1972 Acts as equitable rights that ought to bind purchasers.

Prior to 1926, it was presumed that all equitable rights in and over land were enforceable against all other parties except for bona fide purchasers of a legal estate for valuable consideration without notice. This is known as the bona fide purchaser rule, and this was an ‘absolute, unqualified, unanswerable defence’ in equity (Pilcher v Rawlins(1871-72) L.R. 7 Ch. App. 259 per James LJ). It does not, however, apply in the case of registered land.

Therefore, the doctrine of notice has been confirmed to apply to unregistered land, and not registered land, according to Holaw (470) Ltd v Stockton Estates Ltd(2001) 81 P. & C.R. 29. That said, the bona fide purchaser rule can still mean overriding interests do not take precedence over the rights of bona fide purchasers. This is so, provided that certain conditions are met:

  1. The purchaser must show that his absence of notice was ‘genuine and honest’ (Midland Bank Trust Co Ltd v Green (No.1) [1981] A.C. 513).
  1. The purchaser must take a legal estate in the land concerned, however a lender who takes a charge “by way of legal mortgage” is regarded as having “the same protection” as if a legal estate had been created in his favour (Law of Property Act 1925, s.87(1)). A purchaser who takes only an equitable interest in the land is, in principle, subject to all pre-existing equitable interests regardless of notice. This emphasises the idea of the first equity in time prevailing over a latter equity.
  1. A person is a purchaser if they take property by reason of the act of another person, which means they cannot take property as a purchaser if they seek to take possession of the property based solely on an operation of law. Therefore, a person is a purchaser if they are a donee (meaning they received the property from another person as a gift) but cannot be a purchaser if they are a squatter, because title derives simply form the passage of time.
  1. Finally, a bona fide purchaser must take the property without notice. There are different categories of notice:
  1. Actual notice is where the purchaser is consciously aware of relevant matters at the date of purchase, such as the fact of occupation; these are matters which are said to be ‘within his [the purchaser’s] own knowledge’ (Law of Property Act 1925 s.199(1)(ii)Ia)). This is effectively a subjective test.
  1. Constructive notice relates to matters of which the purchaser would have been consciously aware if he had taken reasonable care to inspect both land and title (Law of Property Act 1925 s.199(1)(ii)(a)). This, unlike actual notice, is an objective test. The courts tend to be reluctant to apply the doctrine of constructive notice broadly (Hunt v Luck [1902] 1 Ch. 428). An example of matters giving rise to constructive notice would be an inspection of the land that discloses the physical presence of persons other than the vendor (the seller).
  1. Imputed notice is attributed to a purchaser where the knowledge is held, actually or constructively, by an agent of the purchaser, such as a solicitor (Law of Property Act 1925 s.199(1)(ii)(b)).

Examination consideration: You would have to be clear on the bona fide purchaser rule, and especially all of the different kinds of notice. In a problem question which raises bona fide purchaser issues, is the notice actual, constructive or imputed? Depending on the type of notice, what is the consequence? Make sure you highlight the relevant sections in the Law of Property Act 1925 in your statute exam book.

Case in focus: Kingsnorth Finance Ltd v Tizard

The husband, H, held an unregistered legal title on an implied trust for himself and his estranged wife, W. H and two children of the family lived in the house and W visited the home twice a day in order to cook meals for the children. H secretly charged the legal title to Kingsnorth Finance (KF), a finance company, and then left for the United States with one of the children. H arranged for the usual mortgagee’s inspection and valuation at a time when W would not have been in occupation, as W only occupied intermittently. KF, having not paid the mortgage moneys to at least two trustees, could not claim to have overreached W’s beneficial interest, nor did W’s interest constitute a registrable land charge per the Land Charges Act 1972. The doctrine of notice was deemed to apply to W’s beneficial entitlement. KF’s claim for possession was rejected, as it ought to have been apparent to KF, as mortgagee, that upon inspection children occupied the property. KF ought to have made further inquiries regarding the possible rights of a wife. Given KF had failed to take these steps, it was fixed with constructive notice of W’s equitable interest.

Key points from Kingsnorth Finance Ltd v Tizard

  • H had attempted to prevent the KF from having notice of the W’s presence.
  • That being said, the inspection, according to the court, ought to have resulted in KF undertaking further inspections and inquiries regarding the possibility of a wife being in occupation.
  • As with ER Investments Ltd v High above, it was not possible for the wife to register her interest in the land. This indicates that where an interest is registrable, then the lack of registration should mean that the bona fide purchaser is entitled to the property.

Examination consideration: We have seen how Kingsnorth Finance represents an instance of notice having been given, and it was constructive notice. Looking above at the case of ER Investments Ltd v High, what type of notice do you think applies in that case? You can use these two cases in an exam to distinguish between actual notice and constructive notice.

Note that in cases of bona fide purchasers without notice purchasing property, the unregistered rights are not only void against that purchaser; in fact, the unregistered right upon being held void against that purchaser are forever extinguished. Therefore, if A, a bona fide purchaser without notice, validly purchases Blackacre and voids the unregistered rights of C, the unregistered rights are extinguished forever and cannot even bind a subsequent purchaser, D, who does have notice of those unregistered rights (Wilkes v Spooner [1911] 2 K.B. 473).

PART FOUR: ADVANTAGES AND DISADVANTAGES OF UNREGISTERED LAND

ADVANTAGES OF UNREGISTERED LAND

In the case of unregistered land, rights over land tend to lie with the long-standing occupant(s) of the property, rather than the nascent purchaser. That means that, in the event another party purports to sell the occupant’s property to an innocent purchaser without the occupant’s consent, the occupant retains the right to the property; it does not pass to the innocent purchaser.

Here’s how it can best be understood: A is the owner of the property (we’ll call it Blackacre). B sells the title of Blackacre to C, without A’s consent. C is unaware that the sale takes place without the consent of A. In this instance, A retains the title.

There are several reasons for this approach:

  1. Allowing the innocent purchaser to win in a dispute over ownership would be objectionable to the original occupant, given they did not authorise the disposition of the property. This has been described as ‘anathema to democratic ideals of private ownership.’ (Amy Goymour, ‘Mistaken registrations of land: exploding the myth of “title by registration” (2013) C.L.J. 72(3) 617.) This view is consistent with the European Convention on Human Rights in that any non-consensual interference with the occupant’s property (in this case by purported sale of the property) is unjustified unless it is shown to be in the public interest and is proportionate.
  1. The concept of security of title (meaning, if you have title to property, you have a reasonable expectation it cannot be interfered with without your consent) is arguably strengthened if the original occupant is favoured over a later innocent purchaser. Otherwise, if a buyer could easily take ownership of land, it would give support to the idea that title is actually ‘easy come, easy go.’ (Thomas Mapp, Torrens’ Elusive Title (Alberta) (1976)).
  1. The layperson’s view, according to the Scottish Law Commission, is that such dispositions as described above ought to be declared void. As Amy Goymour has said, ‘the popular conception of a just outcome should not be dismissed lightly.’
  1. Following what was said above about the layperson’s perspective, the layperson may not realise that they ought to protect their interest by way of a charge. It has been pointed out that many parties with overriding interests (such as the original occupant ‘A’ in our scenario) are simply ignorant of registration requirements. Purchasers will employ solicitors and conveyancers, but those with the overriding interest tend not to. It is therefore, as Roger Smith has said, ‘unrealistic and unfair’ to expect such people to protect their interests by way of registration, and the layperson’s view is that their possession of the land ought to protect them absolutely (Roger Smith, ‘Land registration reform - the Law Commission’s proposals’ (1987) Conv. Sept-Oct. 334).

Examination consideration: Whilst you are unlikely to have the space to discuss advantages of unregistered land, in an essay question it is very different. When you are asked how unregistered land pertains to priorities of ownership between competing parties, you should be able to list off these advantages. Can you remember the sources listed above?

ARGUMENTS AGAINST UNREGISTERED LAND

Given the discussion above, it is perhaps unsurprising that the arguments given against unregistered land tend to be about how they affect the rights of purchasers. This is part of a view about what the Land Registration Act 2002 was intended to do: namely, according to the supporters of this view, preferring the purchaser to the original occupant is a ‘self-contained, considered and appropriate resolution of problems which arise’, those problems being the issue of ownership. (Elizabeth Cooke and Roger Smith, Ruoff and Roper’s Law and Practice of Registered Conveyancing (London) (2013)).

Conversely to the points made above, there are several reasons why favouring the purchaser, which means opting for registered land rather than unregistered land, is preferable:

  1. The choice simplifies and makes cheaper the conveyancing process for the purchaser. If the land is registered, they can take the Register at face value and would not need to go through the cumbersome process of establishing the “good root of title” going back at least 15 years.
  2. This preference for the purchaser, if made generally, could help to bring about a more confident and dynamic property market.
  3. The purchaser may also have a human rights claim to the property, given that they had exchanged the required purchase money for the property and may seek to make the land their home.
  4. There are other arguments against unregistered land. The intersection for example between cases which require notice and those which do not is not always clear, and as a result a purchase of unregistered land can be complicated. This complexity is a chief complaint: Lord Scarman, in Williams & Glyn’s Bank Ltd v Boland [1981] A.C. 487, bemoaned the need to show “good root of title” as a ‘wearisome and intricate task of examining title.’

“Why is it so complex?”

Titles have to be investigated afresh on every successive purchase; every purchaser is obliged to look over the long history of ownership of the land, and come to a judgement about the quality of the relevant title, and would have to weigh the risks that a defect of the title would have on the market value of the land (Kevin Gray and Susan Francis Gray, Land Law (6th ed.) (2009) (Oxford)). Purchasers can therefore have serious evidential hurdles to surmount when establishing the “good root of title”, and it is clearly not desirable.

Compare the process of tracing title of unregistered land to the process of determining title over registered land. In that instance, when a purchaser comes to inspect the title of the land, it has already been approved by the Chief Land Registrar, both graded and guaranteed by the Registrar. There is therefore no issue about the validity of title. Compared to the practice of establishing “good root of title” in unregistered land, establishing title for registered land is inexpensive, straightforward, and certain.

Examination consideration: In an exam, will you be able to recall the main points that argue against the continued existence of unregistered land? How much weight would you put on the ease of registration when set against the protections for overriding interests?

PART FIVE: ADVERSE POSSESSION

As you will know from your reading elsewhere, adverse possession grants, so-called “squatters’ rights” to those who are in possession of property without paper title to the property. A key element of adverse possession is limitation. And in the case of unregistered land, there is a defined limitation period, after which objections to adverse possession cannot be enforced. The Limitation Act 1980 s.15(1) stipulates that ‘no action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him.’ As you will recall from your reading on adverse possession generally, the right of action accrues to the person with paper title at the time when they become aware of the person without paper title being in possession of the property.

What should be made clear is that the expiry of the twelve-year period does not bring about a conveyance of land from the person with paper title to the person without paper title. Instead, the right is extinguished (Limitation Act 1980, s.17) which makes the squatter’s independent possessory title ‘impregnable, giving him a title superior to all others’ (Buckinghamshire County Council v Moran [1990] Ch. 623 per Nourse LJ).

Finally, the squatter, upon taking possession of unregistered freehold land, must be bound by all prior encumbrances, charges etc. And because they have taken possession by operation of law, they cannot rely on the defence of being a bona fide purchaser without notice, and therefore is subject to restrictive covenants and unregistered rights as per the pre-1926 convention (Re Nisbet and Potts Contract [1906] 1 Ch. 386).

Examination consideration: Although it is probably unlikely that a question about unregistered land will feature, as an aside, discussion of adverse possession, it is quite possible that the reverse would occur. In other words, if you are answering a question about adverse possession, you may seek to mention any relevant points about the land if it is shown to be unregistered.


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