Unregistered land

Question 1

What is unregistered land?

Answer 1

Unregistered land is any land which does not have a record of title in the Land Registry. Unregistered land forms an ever-decreasing minority of the land in England and Wales.

Although registration is not always compulsory, certain “trigger events” can make it compulsory, such as the sale of the land. Indeed, any transfer of land that fails to register the land is automatically void (Land Registration Act 2002, ss. 6(4), 7(1))

Question 2

How is title proven in unregistered land

Answer 2

For unregistered land, title is proved by title deeds. The documents which prove the history of title over property are described as the ‘essential indicia of title’ (Sen v Headley [1991] Ch. 425 per Nourse LJ). These documents, so-called “deeds bundles”, should identify the person who currently holds the best “title” to the land. When a party looks to purchase that land, they are required to look at least at the previous 15 years in order to show a “good root of title.”

Question 3

Can a person still claim to have a right to the land without obtaining protection by documentary evidence?

Answer 3

In some instances, yes. A person can claim ownership of the land by relying on the fact of their having occupied and possessed the property. In this instance, they are not relying on a paper title, but instead are expected to testify, by means of a ‘statement of truth’ or some other statutory declaration that they have sustained possession over the land. They would do so under the Statutory Declarations Act 1835, and this approach is sanctioned by the Land Registration Act 2002, s.9(5).

Question 4

Unregistered interests

Answer 4

Certain proprietary entitlements are allowed to exist ‘off the register’, meaning they are not recorded in the Land Registry. This is a concept known as “the crack in the mirror.” These rights are classified as ‘unregistered interests’ and are deemed to be ‘overriding interests’, meaning they can bind subsequent purchasers of the land.

Question 5

Protecting unregistered interests

Answer 5

Legal rights – these rights bind the whole world and do not require any further protection.

Equitable rights – Equitable rights no longer protected by the doctrine of notice. These are registrable either (1) as land charges if they are “commercial interests”, or (2) should be “overreached” if they are “family interests.” These rights do not bind a purchaser, however the interests are to be reflected in the purchase price, i.e. the satisfaction of these rights will impose a higher financial cost on the purchaser.