LAND LAW - PUBLICATIONS AND RESEARCH

Registered Land

Book Chapters:

“Guaranteed Title, No Title Guaranteed” in  New Perspectives on Land Registration, A Goymour et al (Hart, 2018)

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. It explores how the different strands of the case law can be pulled together, categorising different kinds of registration error.

"The Public Face of the Register: Confidence in the Land Registration Act 2002" in Das Grundbuch im Europa des 21. Jahrhunderts, A Wudarski (Duncker & Humblot, 2016)

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.

“State guaranteed title: the Land Registration Act 2002” in Property Law Perspectives III, D Gruyaert et al (Intersentia, 2015)

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.

Articles and Notes:

“Agency, Knowledge and Good Faith in Land Registration: Knightsbridge Property Development Corporation (UK) Limited v South Chelsea Properties Limited” [2018] Conveyancer and Property Lawyer 76

This note explores the decision of Newey LJ in the High Court in Knightsbridge Property Development Corp v South Chelsea Properties Ltd 1. The jurisprudence surrounding the Land Registration Act 2002, and in particular the provisions relating to rectification of title and indemnity, has been vexed (as has been very well documented). I argue that, in this respect, the clear, sensible and “statute-focussed” approach taken by Newey LJ in this case is enormously welcome. I then also examine the relationship between registration and agency more generally.

“Interests, powers and mere equities in modern land law” (2017) 37 Oxford Journal of Legal Studies 435 (with S Cooper).

In this article, myself and Professor Cooper examine the right to rectify the register under the English land registration system. We assess when the right to rectify might be understood as a power, a proprietary interest, a restitutionary right or a “mere equity”. We look at the enforceability of the right against remote beneficiaries of a mistaken registration and consider how greater coherence, either through legislative clarification or judicial exposition, can be achieved.

Mortgage Express v Lambert: mere equities and overreaching” [2017] Conveyancer and Property Lawyer 71

This note examines the reach of overreaching in relation to lease interests. I argue that the conclusions in this respect reached in this case raise the problem of remedies and the reasons which the Court of Appeal gives in support of its approach are potentially problematic.

“Powers of the beneficiary of a charge” (2016) 80 Conveyancer and Property Lawyer 157

In this note I examine the decision in Skelwith v Armstrong. I examine what the powers of the beneficiary of a trust registered charge are. Specifically, the case asked whether such a person is entitled to sell title to the mortgaged property. I examine the reasoning of the court in the light of the principles of the registration system as a whole.

“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.

'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.

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.

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.

“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.

Conference Papers:

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

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

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

Human Rights and Property Law

Articles and Notes:

“Article 8, proportionality and horizontal effect” (2017) 133 Law Quarterly Review 31

This note considers four issues arising from the Supreme Court judgment in McDonald v McDonald: the relevance of contractual arrangements and statutory interventions to questions of horizontal effect; the consequences of art.8 being engaged; the mechanisms of horizontal effect; and the need to balance art.8 and art.1, Protocol 1. It argues that despite the brief and simple-seeming judgment, delivered by Lord Neuberger and Lady Hale (with whom the rest of the court agreed), there are as many issues raised by this judgment as are solved.

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.

This case was discussed by the Supreme Court in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45.

“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.

Conference Papers:

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

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

"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

Property Theory

Articles

Forthcoming, “Regulation and the Morphology of Property” (2019) Journal of Property, Planning and Environmental Law (editorial)

This editorial introduces a special issue of the Journal of Property, Planning and Environmental Law, edited by myself and Douglas Maxwell. The issue, which contains papers emerging from a symposium on Regulation and Property held in Cambridge in May 2018, considers a wide-ranging spectrum how regulation and property interact. My own editorial examines the idea of ‘property’ and advocates a pluralistic approach to defining property.

“Property in the Anthropocene” (2019) 43 William and Mary Environmental Law and Policy Review 514-593

This article explores justifications for stewardship of land. It shows that intergenerational justice, community interests, and environmental protection are all goals sought through the imposition of the duties of stewardship onto owners of land. But such duties, when imposed by law, require justification beyond the morality of maintaining and preserving land in a good condition for its present and future use. The potential for sanction imposed by the state means that stewardship duties, if they are to be justified, must be grounded in established principles of justified legal intervention. Of those, the most convincing is, and always has been, the harm principle: intervention is justified where a rule prevents one person from harming another. This test is a challenge for duties of stewardship, where the focus is on preserving one’s own land for the benefit of future generations; who is harmed by a failure to comply? This article explains that the harm in such a breach of duty lies in the erosion of the collective interest which cements the community of land owners and users, a collective to which the relevant owner of land herself belongs. The community is justified in imposing sanction for breach of that rule, not because of any environmental damage per se, but in order to ensure the continued and ongoing existence of the group. In this way, stewardship should be seen not as a rule arising from environmental ethics, but as a coordination rule, justified by the role it plays in maintaining the collective, and as such, stewardship thus inheres in private property. The two are not dichotomous, but inextricable.

Conference Papers

“A justification for stewardship in theories of group obligations” Association for Law and Property in Society, Ann Arbor, USA, May 2017.

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.

Articles and Notes

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.

“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.

Conference Papers

“The ‘New’ Secure Tenancy” New Work in Property and Trusts, London, UK, April 2017 (invited speaker).

“Law as space” Oxford Brookes Symposium on Law and Architecture, Oxford, UK, March 2015 (invited speaker).

Website Materials

Land Law revision website materials for Routledge and companion website to accompany Martin Dixon’s Modern Land Law 8th Edition.