Making Land Work: Easements, Covenants and ... - Law Commission

2.59 Where title to an estate or interest in land is registered, any disposition of it, or
any attempt to create another registrable estate out of it, has no effect at law until
completed by registration. 66 So it is not possible for A to grant to B a legal lease
of A’s house for 10 years simply by deed; there is no legal lease until the lease is
registered. 67
2.60 Where a registrable estate or interest is registered, its validity is guaranteed by
the register. The “state guarantee of title” amounts (in summary) to the principle
that once title is registered, it can be relied upon, even if derived by means that
would yield no title at all at common law, such as forgery. 68 Where it is found that
there is a mistake on the register, it can be altered, but not so as to prejudice a
proprietor in possession who has not contributed to the mistake. 69 By way of
example: X forges a transfer of Y’s land to Z, who was innocent of any
involvement in the forgery. Z takes possession of the land. There is a mistake on
the register, but Y cannot have the land back. The register will not be rectified to
the prejudice of Z, but Y will be compensated out of the indemnity fund. 70 If Z was
not in possession of the land, or indeed if he was involved in the forgery, the
register will be rectified and Y will have the land back. Accordingly the “state
guarantee” may be fulfilled in land or in money.
2.61 Registrable estates or interests that are the subject of a notice on the title to the
burdened land also have their priority protected by section 29 of the Land
Registration Act 2002; a purchaser of the land for valuable consideration under a
registered disposition (that is, one that must be completed by registration) is
bound by any interest that is the subject of a notice on the register. 71 A purchaser
is also bound by registered charges and by the overriding interests listed in
schedule 3 to the Act; for our purposes, the most important item in that list is
paragraph 3: legal easements. Although the express grant or reservation of a
legal easement affecting registered land is a registrable disposition, and therefore
when created expressly cannot have legal status unless completed by
registration, some express easements affecting registered land bind a purchaser
despite not appearing on the register; they do so as overriding interests. 72 The
same applies to easements created otherwise than expressly, by prescription and
implication.
66 LRA 2002, s 27; and see para 2.13 above.
67 Note that not all grants of leases are registrable dispositions; generally speaking, it is only
those granted for a term of more than seven years; LRA 2002, s 27(2)(b)(i).
68 LRA 2002, s 58.
69 LRA 2002, sch 4.
70 LRA 2002, sch 8.
71 Such a purchaser is protected against any interests other than those listed in LRA 2002, s
29; anyone else acquiring the land (for example, someone to whom it is given, or left by
will) takes subject to the traditional priority rules, according to s 28.
72 This may be the case where a legal easement affecting unregistered land was, for some
reason, not made the subject of a notice on first registration of the affected land.
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