Applications for First Registration

Ian Quayle considers an interesting case concerning an objection to an application for first registration.

Case Name, Reference and Bailii Link

Summary

On what basis can an application for first registration be subject to an objection?   

Facts

This case concerned 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, owned a dwelling house adjoining the Application Land but 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 appeared to object to protect incorporeal rights (rights of way and a right to park) said to burden the Application Land which benefit Mr and Mrs Boler’s dwelling house. Mr and Mrs Boler 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 as they were able prove a root of title commencing in 1984 (a deed of exchange) and a series of valid unregistered dispositions until a transfer to the Boulden’s 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: 

“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 were able to 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). 

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. 

Issues

This case concerned the application of Chapter 1 of Part 2 of the Land Registration Act 2002 (“the Act”) 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)). 

Decision

In deciding in favour of the applicants, 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 also 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 Boler. 

Instead 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, 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 estoppel issue 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. 

This case highlights the point one that title to land is relative and is 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, 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 relevant for the purposes of section 9(2) of the Act.