The Land Registration Act 2002 – the Show on the Road

DOIhttp://doi.org/10.1111/1468-2230.12089
Publication Date01 Sep 2014
AuthorSimon Gardner
LEGISLATION
The Land Registration Act 2002 – the Show on the Road
Simon Gardner*
This article reviews the Land Registration Act 2002, taking advantage of the deeper perspective
afforded by the intervening decade, and absorbing subsequent developments – and, in the case of
the Act’s electronic conveyancing project, non-developments – that have also come to contribute
to the picture. It suggests especially that while the Act’s central idea of conclusive, indeed
‘constitutive’, registration can be beneficial, its deployment here has been problematic. In
particular, the lapse of electronic conveyancing, and the possibility (resisted by the courts) that
conclusive registration can be procured by fraudsters, have diminished the control that parties
have over dispositions of their own title, to the detriment of their autonomy; and over-
preoccupation with the central idea has resulted in a failure to think carefully enough about
problems to which it was never going to be the answer.
This article offers a review of the Land Registration Act 2002 (LRA 2002).1
The Act came into force in October 2003, so is a little over a decade old.
Revisiting it now has the advantage not only of allowing us to view its provisions
from a helpful distance, but also of giving access to the new significance it
has acquired as a result of its operation in practice, and of subsequent develop-
ments regarding a project for which it was only the launch-pad, ‘electronic
conveyancing’.
THE ACT’S AIM: CONSTITUTIVE REGISTRATION
The 2002 Act replaced the Land Registration Act 1925 (LRA 1925). It followed
design work by the Law Commission in conjunction with the Land Registry,
the principal reports being published in 19982and 2001.3The Act is a substantial
piece of legislation (136 sections, 12 Schedules). Most of its provisions concern
small details, and none of them is immediately recognisable as making a keynote
statement. One could easily see only the trees, either missing the wood or
doubting there even is one. If one were to guess at a possible theme, it would
probably be ‘to make arrangements for registering rights in land’, or something
*Hanbury Fellow and Tutor in Law, Lincoln College, Oxford; Professor of Law, University of Oxford.
I am indebted to Amy Goymour and George Gretton, and to the anonymous referees.
1 See E. Cooke, ‘The Land Registration Bill 2001’ [2002] Conv 11; M. Dixon, ‘The Reform of
Property Law and the Land Registration Act 2002: A Risk Assessment’ [2003] Conv 136.
2 Law Commission, Land Registration for the Twenty-First Century – A Consultative Document Law Com
No 254 (London: TSO, 1998).
3 Law Commission, Land Registration for the Twenty-First Century – A Conveyancing Revolution Law
Com No 271 (London: TSO, 2001).
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(5) MLR 763–779
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
of that kind. The Act’s short title, its Preamble,4and its opening section5all
suggest this, and one could continue a long way under the same impression.
However, the impression would be inaccurate. There is more to the Act, or
at least its aspirations, than this. The Explanatory Notes, having referred to the
design work, continue:
As work proceeded an additional factor had to be considered. The Land Registry has
now automated many of its functions, which can now be accessed on line. It became
clear during the Commission’s work that there was wide support within the
property industry and from many legal practitioners for the introduction of a system
of dealing with land electronically. The Law Commission and Land Registry
therefore recommend that the new legislation should aim to create the necessary
legal framework in which all registered conveyancing can be conducted electroni-
cally. The Act establishes such a system.
So despite initial appearances, the establishment of registration arrangements was
not the end in itself, but a means to deliver the Act’s real key aspiration, namely
that all conveyancing would take place via a prescribed form of electronic
transaction.
And this form of transaction was, moreover, to be the electronic manipulation
of the register itself. We had moved from ‘registration of title’ to ‘title by
registration’;6‘[i]t will be the fact of registration and registration alone that
confers title.’7This was presented as a change from the position before 2002. (So
the key Law Commission report was titled: Land Registration for the Twenty-First
Century – A Conveyancing Revolution.8) Previously, registration was largely seen as
an appendage to conveyancing: dispositions were first effected in traditional
ways, then registered. Now, dispositions were to be effected by their (electronic)
registration.
This new vision of registration may be termed ‘constitutive’. It contrasts most
extremely with a regime where registering or failure to register makes no
difference to an interest’s validity or power; registration is merely a facility. It also
contrasts, but less extremely, with a regime where an interest’s validity does not
depend on its registration, but its power does, notably where without registration
an interest will not bind (some or all) disponees, though it will continue to bind
its grantor. Likewise with a regime where registration is necessary even to
validity, but does not guarantee it, that is where an interest’s validity or power
will be compromised not only by non-registration, but potentially by other
4 ‘An Act to make provision about land registration; and for connected purposes.’
5 ‘1 Register of title
(1) There is to continue to be a register of title kept by the registrar.
(2) Rules may make provision about how the register is to be kept and may, in particular, make
provision about –
(a) the information to be included in the register,
(b) the form in which information included in the register is to be kept, and
(c) the arrangement of that information.’
6 n 2 above, para 10.43.
7 n 3 above, para 1.10.
8 n 3 above.
The Land Registration Act 2002 – the Show on the Road
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
764 (2014) 77(5) MLR 763–779

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