LAND LAW - PUBLICATIONS AND RESEARCH

Registered Land

Book Chapters:

“State Guaranteed Title: The Land Registration Act 2002” in Property Law Perspectives III (eds Dorothy Gruyaert et al)

This paper discusses the cases of Fitzwilliam v Richall Holdings, Parshall v Hackney, and Barclays Bank v Guy and the different interpretations of section 58 Land Registration Act 2002 that these cases represent. It argues that a strong guarantee of title best accords with the aims of the 2002 Act. The temptation to interpret the 2002 Act so as to ensure that the titles of fraudsters are not protected undermines the integrity of the land registration system. The focus should instead be on providing a system that promotes confidence in the register. The interpretation adopted in Parshall v Hackney should therefore be adopted.

"The Public Face of the Register: Confidence in the Land Registration Act 2002" in Functions of Land Registers in an European Comparative Law Perspective (ed Arkadiusz Wudarski)

The paper discusses the role of information stored on the register, and the ability of third parties to rely on this information. It considers these issues both in the context of English law and, more widely, the implications of such questions for harmonisation of land registry systems within Europe. It argues that problems with information contain on the register are as much a question for the guarantees that the register provides as they are for more narrow issues of contractual interpretation and specialist or party-specific knowledge. It suggests therefore that we should treat errors on the register in terms of information as being equally as significant as errors in relation to substantive rights.

“Guaranteed Title, No Title Guaranteed” in Land Registration Systems (eds Martin Dixon et al)

This paper argues that the proliferation of case law and commentary in relation to land registration, and the guarantee of title in particular, far from simplifying the position, has merely highlighted that the problem of what registration actually means is far more complex than the simple question, ‘Does the register guarantee title?’, makes it seem.

Articles:

“Title by Registration- Rectification, Indemnity and Mistake and the Land Registration Act 2002” (2013) 76 Modern Law Review 62

Our understanding of the system of registered title is crucial to our understanding of real property in general but there is no consensus as to the best way to interpret ‘correcting a mistake’ in Schedule 4 LRA 2002. This article argues that this provision should be interpreted to mean that subsequent registrations following a ‘mistaken’ registration are not in themselves a mistake. Section 58 means that the subsequent transferee is relying on good title and a valid transfer and this ought to protect them from rectification. Where an original registered proprietor loses out as a result of this interpretation, they should be entitled to an indemnity however and this requires a change of approach to the interpretation of Schedule 8 LRA 2002. This approach best accords with the logic of the principle of title by registration whilst also avoiding a clash with Article 1, Protocol 1 ECHR.

“Encroachments and Schedule 6 LRA 2002: Unknotting the Tangle” (2015) Conveyancer and Property Lawyer 110

This article considers the place of encroachments in the Land Registration Act 2002. It argues that unfortunately, we cannot know for sure what the position is with encroachments and schedule 6 without a firm commitment from a higher court as to the basis of encroachments. What we can know however is that the wording of schedule 6 does not encompass encroachments at all comfortably. If we take the wording of schedule 6 seriously, it may very well be that the doctrine of encroachments is not dealt with under the 2002 Act at all.

Case Notes:

"Richall Holdings v Fitzwilliam: Malory v Cheshire Homes and the LRA 2002.” (2013) 76 Modern Law Review 924

Richall Holdings v Fitzwilliam, holds that Malory v Cheshire 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. This case note argues that the decision ought to be overruled.

Indemnity and the Land Registration Act 2002’ (2014) 73 Cambridge Law Journal 25

This case note discusses the decision in Swift 1st v Chief Land Registrar. It argues that whilst the result reached in that case is defensible, the reasoning employed by the Court is unsatisfactory, and adds to the already uncertain position in relation to what effect section 58 of the LRA 2002 has.

'Rectification of the register – prospective or retrospective?' (2015) 78 Modern Law Review 361

This case note discusses the recent decision of the Court of Appeal in Gold Harp v McLeod. It argues that whilst the interpretation of schedule 4 paragraph 8 Land Registration Act 2002 that this case employs is correct as a matter of statutory language, it is unfortunate that the opportunity was not taken to clarify the interaction between this provision, the meaning of “correcting a mistake”, and the guarantee of title in section 58.

'Registration Make-Believe and Forgery – Swift 1st v Chief Land Registrar' (2015) 131 Law Quarterly Review 515

This case note discusses the Court of Appeal decision in Swift 1st v Chief Land Register. The significance of this case lies in its overruling Malory v Cheshire homes, and the consequences of this for the guarantees provided by registration. It argues that although the case is to be welcomed, some questions remain unanswered. In particular, the ability of a right to rectify to override, and the effect of mistaken (not forged) dispositions remain unclear.

“Powers of the Beneficiary of a Charge” [2016] Conveyancer and Property Lawyer 157

This article considers the High Court decision in Skelwith v Armstrong. The court reached the right result such that such the beneficiary of the charge had the power to sell the mortgaged property as if they were a registered chargee. The primary problem with the reasoning is the discussion of the nemo dat principle and the parallel drawn with the equity release scheme litigation. It is argued that the nemo dat principle is irrelevant, and the court’s reasoning in place obscures what ought to be a relatively simple question.

Conference Papers:

“The Land Registration Act 2002: Putting the State Guarantee of Title Front and Centre” Young Property Lawyers Forum, Leuven Belgium, November 2013.

This conference paper was presented to the Young Lawyers Property Forum and has now been taken forward for publication in Property Law Perspectives III. Please see above for more information.

"Guaranteed Title: No Title, Guaranteed” Land Registration Conference, Cambridge, November 2014.

In this paper, the twin guarantee provided by the Land Registration Act 2002 is considered. The Act not only guarantees the validity of titles when they are registered: it guarantees that there is no valid legal title when there is no registration. It argues that this “flip-side” to the guarantee of title is somewhat overlooked in the existing discussion of land registration.

"A Case of Mistaken Priority" Cambridge Centre for Property Law, Cambridge, December 2014.

This paper considers whether the priority provisions in sections 28 and 29 of the Land Registration Act 2002 provide a better solution to A-B-C title disputes than does reliance on schedules 4 and 8 of that act. It discusses the “trust solution” in Fitzwilliam v Richall Holdings, and rights to rectify the register as overriding interests.

Human Rights and Property Law

Articles:

“Actions for Possession in the Context of Political Protest: the Role of Article One, Protocol One and Horizontal Effect.” [2013] Conveyancer and Property Lawyer 43

This article argues that there is a “second front” where the questions of horizontal effect for human rights, and the role of article 1 protocol 1 in actions for possession is being played out. The focus in the literature on actions for possession against tenants and licensees overlooks the developing law in relation to action for possession against trespassers. It demonstrates that there is a strong case for horizontal effect in this context, and suggests that closer attention should be paid to the mechanisms by which such horizontal effect is brought about.

Case Notes:

McDonald v McDonald: Horizontal Effect of Article 8” (2015) 131 Law Quarterly Review 34

This case note considers the Court of Appeal decision in McDonald v McDonald. It argues that a failure to distinguish between an obligation relating to interpretation, for which there is clear and consistent Strasbourg authority, and highly persuasive national authority, and the ability to directly invoke a Convention right, obscures the role that Convention rights must play in the private landlord/tenant relationship. McDonald v McDonald fails to provide a clear framework within which that discussion can take place.

Book Reviews:

"The Right to Housing: Law, Concepts, and Possibilities" (J Hohmann) - [2015] Conveyancer and Property Lawyer 95

This review highlights that Hohmann’s approach of considering rights to housing through the conceptual lenses of privacy, identity and space contains important lesson for doctrinal scholarship. The book argues that limiting consideration of housing rights to issues of security of tenure undermines the role that housing rights can play. The review suggests that although the ambition of the work undermines the detail in which the legal mechanisms for introducing more nuanced housing rights are examined, the need to think about housing rights differently is convincingly presented.

Conference Papers:

“Understanding Article 1  Protocol 1” Cambridge Centre for Private Law, Cambridge, October 2014.

This paper discusses article 1, protocol 1 in the context of actions for possession. It argues that it can only protect that which national law confers. The initial question when considering actions for possession must always be whether articles 8, 10 and 11 impose restrictions onto the national law property right. If they do, article 1 protocol 1 cannot then be used to “re-expand” that national law right. The existing case law which talks about “balance” between article 8, 10 and 11 rights and article 1 protocol 1 rights therefore fails to correctly conceptualise the role of human rights in such cases.

"Horizontal Effect in Land Law: How to Balance Articles 8, 10 and 11 and Article 1 Protocol 1” Young Property Lawyers Forum, Oxford UK, September 2014

This paper considered similar issues to the paper above, but in addition gave a general overview as to the likelihood or not of horizontal effect for articles 8, 10 and 11 rights as defences for actions for possession. It argued that despite the decision in McDonald v McDonald, such horizontal effect is inevitable. It also considered the case law of the European Court of Human Rights in relation to horizontal effect, and concluded that given the inevitability of this path, it is essential that we examine the mechanism of horizontal effect to ensure coherence in the ensuing law.

"Human Rights and European Property Law: Integration or Imposition" ALPS, Athens, Georgia USA, April 2015

This paper considered whether the current approach to human rights and property law is one of integration, or imposition, and the consequences of these two options. It argued that whilst the current approach is unclear, it is important to distinguish the two since both have some surprising consequences. Furthermore, the possibility of horizontal effect raises the need to re-assess the place of motivation in relation to the enforcement of property rights, as well as questions of rationality and reasonableness.

Other

Books

Q & A Land Law 2014-2015, Martin J Dixon and Emma Lees (Routledge)

This book is a valuable resource for students by providing them with sample answers to problem and essay questions on the central topics in land law. It is designed to be of assistance in revision in particular. It contains much visual information in the form of tables and flow charts to assist the students in their understanding of this, at times, complex paper.

Case Notes

“Pushing the Boundaries of Dutton” 2011(1) Conveyancer and Property Lawyer 74 (as Lochery)

This article considered the decision in Mayor of London v Hall and the acceptance of the approach of the majority in Manchester Airport v Dutton by Neuberger MR in that decision. It argued that the approach in Hall in fact goes further than that in Dutton, and the consequences for the division between personal and property rights is potentially significant.

Keay v Morris Homes and Section 2 Law of Property (Miscellaneous Provisions) Act 1989” (2013) 77 Conveyancer and Property Lawyer 61

This case note discusses the decision in Keay v Morris homes and the doctrine of the part performance of unwritten contracts for transactions involving rights in land as discussed in Tootal Clothing. It argues that the decision has three key consequences. Firstly, it explains the ratio of Tootal. Secondly, it rejects the idea of part performance retrospectively validating an otherwise void contract, at the very least in a commercial context. Thirdly, in so-doing it inevitably shifts focus onto the doctrine of estoppel and its role in enforcing promises which cannot be enforced contractually.

Website Materials

Land Law revision website materials for Routledge.

Companion website to accompany Martin Dixon’s Modern Land Law 8th Edition- accessible at http://www.routledge.com/cw/dixon-9780415690546/