Richall Holdings v Fitzwilliam: Malory v Cheshire Homes and the LRA 2002
| DOI | http://doi.org/10.1111/1468-2230.12042 |
| Published date | 01 September 2013 |
| Date | 01 September 2013 |
Richall Holdings vFitzwilliam:
Malory vCheshire Homes and the LRA 2002
Emma Lees*
Richall Holdings vFitzwilliam, holds that Malory vCheshire Homes is binding in relation to the Land
Registration Act 2002. Newey J saw himself as bound by that decision because he could find no
relevant distinction between the provisions of the Land Registration Act 1925, and the Land
Registration Act 2002. There are however significant differences in the general system of
registration that is established. In particular the different roles of section 20 LRA 1925, and section
29 LRA 2002 mean that Malory was not binding and indeed ought not to have been followed.
In addition, the treatment of the priorities rules in Richall misinterprets section 29 LRA 2002.
Finally, the decision by-passes the rectification and indemnity provisions of schedules 4 and 8.
The decision ought to be overruled.
Richall Holdings vFitzwilliam1(Richall) holds that Malory vCheshire Homes2
(Malory) is binding in relation to the Land Registration Act 2002 (LRA 2002).
Many have already outlined the faults of that case,3and there was widespread
expectation that it would not be followed in relation to the new Act. Its
conclusion that the guarantee of title relates only to legal title such that a void
deed of conveyance followed by registration results in the registered proprietor
holding on trust for the previous title holder was said to fundamentally under-
mine the purpose of the registration system altogether.4In the light of Richall
Holdings vFitzwilliam we must re-address the issue of Malory and its implications
for our system of land registration.
The decision of Newey J is one which has serious consequences for the state
guarantee of title in section 58 of the LRA 2002, and the process of rectification
and indemnity that supports that guarantee. It ought to be overruled. The
existing case law at all levels in relation to the LRA 2002 had proceeded on the
footing that Malory was not relevant. Although not binding on Newey J, it
would have been useful in Richall to have some discussion as to why these cases
had proceeded on the basis that the aggrieved original owner had as his only
remedy rectification of the register or a possibly indemnity. Finally, the approach
*Department of Land Economy, University of Cambridge.
1Fitzwilliam vRichall Holdings Services Limited [2013] EWHC 86 (Ch).
2Malory Enterprises Ltd vCheshire Homes (UK) Ltd [2002] EWCA Civ 151.
3 For example, E. Cooke, ‘Land registration: void and voidable titles – a discussion of the Scottish
Law Commission’s paper’ [2004] Conv 482; M. Dixon, ‘The reform of property law and the Land
Registration Act 2002: a risk assessment’ [2003] Conv 136; A. Hill-Smith, ‘Forgery and land
registration: the decision in Malory Investments v Cheshire Homes’ [2009] Conv 127; D. Sheehan,
‘Rights to rectify the land register as interests in land’ (2003) 119 LQR 31; C. Harpum, ‘Registered
Land–A Law Unto Itself?’ in J. Getzler (ed), Rationalising Property, Equity and Trusts: Essays in Honour
of Edward Burns (London: LexisNexis, 2003).
4 Harpum, ibid, 199.
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Richall Holdings vFitzwilliam
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited.
924 (2013) 76(5) MLR 909–934
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