The Law Commission has issued a consultation on possible changes to the land registration system in England and Wales.
The Law Commission makes recommendations to the Government on modernising the law. One of its recent projects has been to consider the manner in which the land registration system is operating following the significant changes implemented in October 2003 by the Land Registration Act 2002.
The Land Registration Act 2002 itself was the result of a project by the Law Commission. The Law Commission had been asked to consider how the land registration system could be modernised to take account of changes since the previous land registration legislation was introduced almost two generations earlier in 1925. Specific factors that the Law Commission considered in 2002 were the advent of computerisation, the growth in home ownership and the increasing amount of land that is now registered.
The current consultation
The current consultation looks at virtually every aspect of land registration, proposing changes to some current procedures and asking for evidence of possible difficulties in others. The Law Commission makes the point that it is looking only at the land registration system, and not at land law generally.
Specific areas that the Law Commission highlights include the following.
The registration of mines and minerals - should the Land Registry inform landowners as a matter of course when it registers a claim to mines and minerals beneath a registered title? Most practitioners believe the answer to that question should be yes, although the Law Commission is not certain that the matter is clear-cut. Many of the problems in this area arise out of the complications of the underlying law, and the Law Commission ask whether a project to investigate simplification would be helpful (answer: definitely).
Whether the Land Registry should continue to provide a full indemnity to victims of fraud - this is a controversial area, as the incidence of fraud continues to rise. Many practitioners are unsympathetic, believing that the Land Registry brought the problem upon itself with the abolition of land certificates as part of the 2003 reforms. The Law Commission takes a different view, saying 'We note these concerns, but consider that in the context of continuing to move towards the goal of electronic conveyancing, the reintroduction of Land Certificates is not a viable option.' Instead, it considers various possibilities, including putting much more of the risk of fraud onto practitioners. These proposals will be controversial.
Leases - currently leases need to be registered if the term exceeds seven years. The Law Commission considers whether this figure should be reduced - and conclude [spoiler alert] that this is not currently practicable.
Electronic conveyancing - it seems an age since the concept of electronic conveyancing was suggested, the original aim being for completion and registration to be one and the same process, triggered by solicitors themselves. The framework for this is contained in the Land Registration Act 2002, but the IT, and the necessary regulations, have never been produced. Electronic conveyancing as originally proposed now seems a distant prospect, and the Law Commission is now proposing some more modest reforms.
Other proposals -suggestions are made to simplify some of the practical issues that lawyers encounter every day, including those relating to easements, adverse possession, using the land register to provide for priority for unregistered interests, and the problems caused by the 'registration gap' (the period between completion of a transaction and registration of the new owner, which currently may last several weeks).
The Law Commission springs one surprise, towards the end of a section of the paper addressing lease variations. In the context of a paper on land registration, it invites the views of consultees on the severity and extent of problems with the Landlord and Tenant (Covenants) Act 1995. The case of K/S Victoria Street v House of Fraser was what the Law Commission primarily had in mind, but given that the paper was issued only two weeks after the court's controversial decision in EMI Group Ltd v O&H Q1 Ltd (see our article here), it is likely that practitioners will be only too happy to share their views. Such submissions, say the Law Commission, will not be taken forward as part of this project but will be considered in the context of whether there is sufficient support for a separate project to address these issues.
Responding to the consultation
The Law Commission is keen to hear from as many people as possible with their views on its proposals.
The consultation is available here. Responses have to be submitted by 30 June 2016.