LAND LAW AND CONVEYANCING REFORMS

DOIhttp://doi.org/10.1111/j.1468-2230.1969.tb01229.x
AuthorStephen Cretney
Publication Date01 Sep 1969
THE
MODERN
LAW
REVIEW
Volume
32
September
1969
No.
5
LAND LAW AND CONVEYANCING
REFORMS
INTRODUCTION
"
This is a technical subject and unlikely to be of interest to those
who are not conversant with
it
already." This statement by the
Law Commission about one of the matters dealt with
in
the Law
of Property Act
1969
2
is
likely to strike a sympathetic chord with
those readers of this
Review
who think of English land law as
''
medieval, gothic and barbarous," hold the view that
it
offers
no
intellectual entertainment and is scarcely worthy of study
save as an introduction to the technical skills of conveyancing. Yet
the aim of the Act is not without social significance. Law reform
which is designed solely to produce
"
a harmonious body of law
definitely related to the guiding principles of jurisprudence
"
(as
was claimed for the Land Charges Act
1925
by the then Chief Land
Registrar
5,
is a luxury; the present reforms in contrast have the
concrete and practical aim of making a substantial and immediate
contribution towards simplifying conveyancing.g That, in turn, is
not necessarily good
in
itself, but only in
so
far as
it
leads to
an improvement in the security
of
titles
and to a
decrease in the
cost
of
transactions.
It
is proposed to outline the major changes
made by the Act, and then to evaluate them in the light of these
criteria.
or
still
1
The Law Commission: Transfer of Land: Report
on
Land Charges effecting
Unregistered Land. Law Com.
No.
18,
1969
("
Land Charges Report
'I),
para. 10.
2
At the,,date
of
going
to
press this measure (described in anticipation as an
"
Act throughout) had virtually completed its passage through Parliament,
and will
no
doubt receive the Royal Assent in October.
It
comes into force
three months thereafter. For Parliamentary Debates, see H.L.Deb., Vol. 300,
col.
1393; Vol. 301,
col.
553; Vol. 302,
col.
471. H.C.Deb., Vol. 785,
col.
1419; Standing Committee
F,
July 8,
15
and 17, 1969.
8
A.
D.
Hargreaves,
"
Modem Real Property
"
(1956) 19 M.L.R. 14, 18.
4
Unlike its author. See
0.
C. Cheshire,
The
Modern
Law
of
Real
Property
(10th ed., 1967), p.
3.
5
J.
S.
Stewart Wallace,
"
The Land Charges Acts in Jurisprudence
"
(1925)
41
L.Q.R.
176.
6
The Law Commission: Transfer of Land: Interim Report
on
Root
of
Title
to Freehold Land. Law Com.
No.
9, 1967
("
Root
of
Title Report
").
VOL. 32
17
477
478
THE
MODERN
LAW
REVIEW
VOL.
32
Five topics in land law are dealt with: (a) the law of business
tenancies
I;
(b) root
of
title
8;
(c) land charges
v;
(d) local deeds
registries
;
(e) restrictive covenants.1° All except business tenancies
are interrelated, and are dealt with here.
It
should be borne in
find throughout that the reforms only affect
unregistered
con-
veyancing. To that extent they are short term palliatives; the
major reform is the extension of registration of title, but unregistered
conveyancing will be widely relevant
for
many years after the
introduction of universal compulsory registration.
I.
ROOT
OF
TITLE
(a)
Historical background
"
A
good title is one which can at
all
times and in all circum-
stances be forced
on
an unwilling purchaser."
In
English law
there is
no
such thing as a perfect titleY12
for
it
is a relative concept
based
on
the
fact
of possession. The job
of
the title investigator
is to ensure that there is a
"
strong moral probability
"
l3
that
no
one else will be able to show a
better
title to the lund.I4 Since
possession itself is a basis
of
title, the likelihood of someone else
as.serting a superior claim is directly affected by the existence of
limitation periods
:
after the appropriate period superior claims will
become statute barred. While
"
no
man in his senses would take
an offer of a purchase from a man merely because he stood
on
the
ground," yet he will do
so
if the vendor has been standing there
long
enough:
''
with very few exceptions, there is only one way in which
an apparent owner of English land who is minded to deal
with
it
can show his right to do
so;
and that way is to show
that he and those through whom he claims have possessed
7
Noted by
H.
W.
Wilkinson (1969) 32 M.L.R. 306.
8
Implementing Root of Title report; noted by
J.
W. Harris (1967)
30
M.L.R.
589.
9
Implementing Land Charges Report.
10
Partially implementing Law Commission Report
on
Restrictive Covenants
(1967) Law Com. No.
11.
11
Williams on Title
(3rd ed.), p. 526.
12
Royal Commission
on
the Land Transfer Acts, 2nd and Final report (1811)
Cd. 5483. The nearest approach thereto is that
of
a
person registered under the Land Registration Act 1925, with title absolute.
But the Register may be rectified against him,
and
recent decisions of the
courts have weakened the position of
a
first registered proprietor: see Cretney
and Dworkm,
"
Rectification and Indemnity, Illusion and Reality
"
(1968)
84
L.Q.R. 528. For
a
full analysis of the concept of title see B. Rudden,
"The Terminology
of
Title" (1964)
80
L.Q.R. 63; A.
D.
Hargreclves,
I'
Terminology and Title in Ejectment
"
(1940) 56 L.Q.R. 376; Hargreeves
(1956) 19 M.L.R. 14.
the proof would have to start with the grant
t:
Adam and Eve,
but even this was save and except the Garden of Eden,
J.
T. Farrand,
Contract and Conveyance
(1969), p. 71.
In
some countries, however,
it
may
be possible to
she,?
a
title derived direct from the political sovereign: see
John
$!,.
Pltyne, A Typical House Purchase Transaction in the United
States (1966)
30
Conv.(N.s.) 194.
Noted
H.
W. Wilkinson (1967) 30 M.L.R. 681.
B.P.P. 30
1.
p. 32.
18
William Hfyea,
An
Introduction
to
Conveyancing
(5th ed., 1840), p. 282.
14
Otherwise
15
Lord Erskine,
Hiern
V.
Mill
(1806) 13 Ves.
114,
122.

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