Unregistered land in English law is land that has not been registered with HM Land Registry. Under the residual principles of English land law, for unregistered land proof of title is based upon historical title deeds and a registry for certain charges under the Land Charges Act 1972.
Compulsion to register In 2013, because registration of title was never made compulsory per se, 18 per cent of land in England and Wales remained unregistered.HM Land Registry, Annual Report and Accounts 2012/13 (2013) 5. In 2019, the Land Registry stated that "14% of the freehold land of England and Wales remains unregistered." Only if a transaction identified in the Land Registration Act 2002 section 4 took place, as under the Land Registration Act 1925, would the land be compulsorily entered on the register. Such events have resulted in the amount of unregistered land decreasing by around 1 per cent a year. As of 2022, the amount of land unregistered in England and Wales stood at 12 per cent.
Voluntary registration is permitted, and initiatives encouraging large landowners to register their property helped reduce the proportion of unregistered land from about 50% in 2005 to roughly 20% in 2012.
As a result, when dealing with unregistered property, establishing the “root of title” and identifying any associated rights—such as easements or covenants—requires examining the relevant collection of title deeds, typically going back at least 15 years. Even when such property is sold and registration is triggered, a final review of the title deeds remains necessary.
Priority of property rights The first basic principle of unregistered land was that all legal property rights bound everyone, whether or not anybody knew about them. These would usually be in the deeds that were kept, though small interests like a lease of under three years would not because of its exemption from formality, as with registered land.Law of Property Act 1925 s 54(2)
The second principle was that equitable proprietary rights bound everyone except a bona fide purchaser of the legal estate without any notice of the equitable interest. Being a bona fide purchaser was an "absolute, unqualified, unanswerable defence",Pitcher v Rawlins (1871-1872) LR 7 Ch App 259, 269, James LJ so that the person with an equitable interest would only have an enforceable right against the traceable assets received in return for the land. Being a purchaser for value meant not receiving the property as a gift,cf Basset v Nosworthy (1673) 23 ER 55, 56, 'in Purchases the Question is not, whether the Consideration be adequate, but whether 'tis valuable'. and bona fide meant acting in good faith. In turn, good faith largely meant the same thing as buying the land without having any actual notice,cf Lloyd v Banks (1868) LR 3 Ch App 488, per Lord Cairns LC, 490-1, 'evidence of casual conversations' could be 'proof that the mind of the trustee has in some way been brought to an intelligent apprehension... so that a reasonable man, or an ordinary man of business, would act upon the information'. and it not being reasonable to have known, about another person's equitable interest.cf Midland Bank Trust Co Ltd v Green AC 513, 528, Lord Wilberforce, suggests that someone could still act without bona fide in absence of any notice, actual or constructive. One example could relate to the equitable doctrine of having "clean hands". See Re London School of Electronics Ltd Ch 211. According to the Law of Property Act 1925 section 199, and cases through the courts, buyers of land would be bound by prior equitable interests if the interest "would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made".The case of Caunce v Caunce 1 WLR 286, where High Court judge, Stamp J held that a husband's ability to sell title would not be changed by his wife living with him, was cast under heavy doubt by the Court of Appeal in Williams & Glyn's Bank Ltd v Boland Ch 312. So for example, in Kingsnorth Finance Co Ltd v Tizard, it was held that clothes of a divorcee being present in a home bound a bank's agent who inspected a property with notice of her equitable interest. 1 WLR 783. cf Hunt v Luck 1 Ch 45 The general scheme of the law was to do everything possible to ensure that people were not deprived of their stakes in their homes without their fully informed and true consent, yet it stopped short of simply determining that equitable rights were always binding.
Land charges
On top of these basic rules, the Land Charges Act 1972, following predecessor the Land Charges Act 1925, required that some kinds of charges had to be entered on another special register of charges for unregistered land. According to section 2, a puisne mortgage (a second or third mortgage created after a property is already mortgaged) had to be registered before it would be binding, even though it had previously counted as a legal property right.LCA 1972 s 2(4)(i), Class C(i)
The other important kinds of charge that had to be registered are restrictive covenants and equitable easements,LCA 1972 s 2(5), Class D a right from part IV of the Family Law Act 1996,LCA 1972 s 2(7), Class F and an "estate contract" (i.e. either a future right to buy a property, or an option to buy).LCA 1972 s 2(4)(iv), Class C(iv) Without registration, those charges would be void, but once registered those charges would bind everyone.LCA 1972 s 4 and Law of Property Act 1925, s 198 The registration would go against the name of the title holder, although this was sometimes prone to being confusing if people occasionally used different names (e.g. Francis or Frank).LCA 1972 s 3 and Oak Co-operative Building Society v Blackburn Ch 730 If an official search of the register did not reveal any titles, then the purchaser would gain good legal rights.LCA 1972 s 10
One glaring injustice, however, was that the House of Lords held the registration rules to be strict. In Midland Bank Trust Co Ltd v Green, Walter Green gave his son, Geoffrey an option to buy the property, but did not register it. Then Walter changed his mind, and knowing that Geoffrey had not registered this estate contract, he transferred the property to his wife, Evelyne, for £500 to defeat the agreement. Although the purchaser had actual notice of Geoffrey's equitable interest, it did not matter because it was not registered. In another example, it was held in Lloyds Bank v Carrick that a person in actual occupation of a home, who had an unregistered right to buy the home, could not claim an overriding interest (as would have been possible in registered land) because the only source of the interest was the estate contract, and without registration this was void. 4 All ER 630. cf ER Ives Investment Ltd v High 2 QB 379, where a right of way was not registered, but it still bound purchasers because it was given in return for foundations of the neighbours that encroached upon the property.
The anomalies of the system were always acknowledged, and so it was simply hoped that unregistered land would dwindle away.See H Wade, 'Land Charges Registration Reviewed' Cambridge Law Journal 216 The solution, perhaps simpler, of passing legislation requiring that everything was compulsorily registered, was not yet taken.
See also
English land law
Notes
References H Wade, 'Land Charges Registration Reviewed' Cambridge Law Journal 216