When Unregistered Conveyancing and Land Registration meet

When Unregistered Conveyancing and Land Registration meet
January 31, 2025

Chapter 1 of Part 2 of the Land Registration Act 2002 (“the Act”) is entitled “First Registration”, and section 3 applies to any unregistered estate in land (section 3(1)(a)). Subject to certain exceptions, a person may apply pursuant to section 3(2)(a) to the registrar to be registered as the proprietor of a legal estate to which section 3 applies if the estate is vested in that person.

In the case of an application for registration under Chapter 1 of the Act of a freehold estate, the classes of title which the applicant may be registered as proprietor of are: (1) absolute title, (2) qualified title, and (3) possessory title (section 9(1)) of the Act).

Section 9(2) of the Act is concerned with registration with absolute title, and it provides as follows:

A person may be registered with absolute title if the registrar is of the opinion that person’s title to the estate is such as a willing buyer could be properly advised by a competent professional advisor to accept.

In applying section 9(2), the registrar may disregard the fact that a person’s title appears to be open to objection if the registrar is of the opinion that the defect will not cause the holding under the title to be disturbed (section 9(3)).

In Boulden and Boulden v Boler and Boler (Case number: Ref 2023/0557) the First Tier Tribunal, Property Chamber Land Registration (Judge Ewan Paton) (“the Tribunal”), had to decide an opposed application by Mr and Mrs Boulden under section 9(2) of the Act to be registered as proprietors with title absolute of unregistered freehold land known as Land at Bonnington Pinn (“the Application Land”).

Mr and Mrs Boulden claimed to be entitled to be registered as proprietors because they had a good paper title to the Application Land.

The objectors to the application, Mr and Mrs Boler, own a dwelling house adjoining the Application Land but unlike many first registration disputes, did not themselves claim ownership of any part of the Application Land.

Subject to a few exceptions, any person can object to an application under section 9(2) of the Act for whatever reason they think fit, and therefore an objector’s motive is prima facie irrelevant to his or her objection.

Mr and Mrs Boler’s motive for objecting seems to have been to protect incorporeal rights (rights of way and a right to park) said to burden the Application Land benefitting Mr and Mrs Boler’s dwelling house. Mr and Mrs Bolder failed to understand that if they had any such rights, they were unregistered interests which override a registered disposition, so the registration of Mr and Mrs Boulden as proprietors of the Application Land would have no impact on the existence, or not as the case may be, of the claimed incorporeal rights.

Mr and Mrs Boulden’s application was straightforward. They could prove a root of title commencing in 1984 (a deed of exchange) and a series of valid unregistered dispositions thereafter until a transfer to them in 2021 at which time they applied for registration.

It was Mr and Mrs Boulden’s case that a willing buyer could be properly advised by a competent professional advisor to accept such a title. Such a willing buyer would be so advised because section 44(1) of the Law of Property Act 1925 (as amended by section 23 of the Law of Property Act 1969) (“the 1925 Act”) provides as follows:

After the commencement of this Act fifteen years shall be substituted for forty years as the period of commencement of title which a purchaser of land may require; nevertheless earlier title than fifteen years may be required in cases similar to those in which earlier title than forty years might immediately before the commencement of this Act be required.

Mr and Mrs Boulden could show a root of title commencing more than 15 years before the date of their application for registration, November 2021. Further, by operation section 45(1)(a) of the 1925 Act, a purchaser cannot require the production of any deed or other document dated or made before the time prescribed by law for the commencement of title. Accordingly, the hypothetical buyer referred to in section 9(2) of the Act once shown a chain of valid dispositions from a root at least 15 years prior to the date of the hypothetical purchase would be satisfied he or she would acquire a good title.

It was Mr and Mrs Boulden’s case that for the purposes of satisfying the registrar (and therefore the Tribunal in the case of an objection) under section 9(2) of the Act, an applicant had to deduce title in the manner well known to conveyancers of unregistered land. All very straightforward.

Mr and Mrs Boler contended (inter alia) that Mr and Mrs Boulden’s case revealed “a lack of understanding … as to how unregistered conveyancing works”. It was Mr and Mrs Boler’s case that for the purposes of section 9(2) of the Act, the hypothetical buyer could and would look back beyond a root of title at least 15 years past and, perhaps, unearth some defect in the passage of title which meant a good title could not be shown at the relevant time, namely the date of the hypothetical sale (in the real world, the date of the application for first registration).

Applying this principle, Mr and Mrs Boler pointed to a statutory declaration made in 1975 in which, according to Mr and Mrs Boler, a member of Mr and Mrs Boulden’s family admitted the Boulden family did not own the Application Land. (Judge Paton held the 1975 statutory declaration was an expression of opinion not fact and therefore Mr and Mrs Boler’s case failed as a matter of fact as well as a matter of law).

Judge Paton rejected Mr and Mrs Boler’s case which he, Judge Paton, described as betraying a misunderstanding of unregistered conveyancing on the part of Mr and Mrs Bole! Judge Paton accepted Mr and Mrs Boulden’s submission that provided an applicant for first registration could prove title commencing at least 15 years before the date of an application, that was sufficient to satisfy section 9(2) of the Act.

In paragraph 61 of the decision, Judge Paton said this:

The entire historical basis of unregistered title, and Mr. Denehan’s submission that all titles were “bad” once, is that over time an initially weak, defeasible or doubtful title may through time, and by successive dispositions, harden into a good and practically indefeasible title. That is potentially true of virtually every title in England and Wales. If one went back far enough in any case, one would probably find a gap in the chain or an initially weak or uncertain claim of title (whether by feudal lord or a more modern opportunist) on which subsequent dispositions were then based.”

As identified by Judge Paton (see paragraph 25 of the Decision), there is little direct authority on the application of section 9(2) of the Act or its approximate predecessor, namely section 13 of the Land Registration Act 1925. However, his decision supports the proposition that to satisfy the registrar under section 9(2) of the Act, an applicant must prove title in the same manner and to the same extent as a vendor was required to prove title in the time of unregistered conveyancing.

Mr and Mrs Boler took another point by way of objection, namely that an issue estoppel arose as a consequence of the registration of the Application Land as a village green, which was hopeless and roundly rejected by Judge Paton on many grounds.

Judge Paton ordered the Chief Registrar to register Mr and Mrs Boulden as proprietors of the Application Land.

The decision in Boulden and Boulden v. Boler and Boler reminds one that title to land is relative, is frequently not perfect and can change with the passing of time. Mr and Mrs Boulden could show they had title to the Application Land in November 2021 as a consequence of a chain of dispositions commencing more than 15 years before November 2021. That being the case, what the quality of title to the Application Land in 1975, 1189 or at any other time prior to the statutory 15 year period was not to the point for the purposes of section 9(2) of the Act.

A copy of the decison can be found here.

Edward was assisted in the case by Julian Torres-H-Bonilla, a pupil in Tanfield, and was instructed by Robert McLellan of Excello Law.

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