Landowners cannot register cautions against first registration in respect of their own land
Cautions against first registration are a useful weapon in the conveyancer’s armoury. A person who claims an interest in or rights over unregistered land, who has taken the precaution of registering a caution against first registration, is entitled to be notified when the Land Registry receives an application to register the land for the first time. The registration will not improve the cautioner’s rights; the effect is procedural only. However, it will provide the cautioner with an opportunity to ensure that its own claim is considered when the land is registered for the first time.
It used to be possible for landowners to register cautions against first registration to protect their own land. The owners of large estates sometimes did so because it was quicker and easier to register a caution against first registration than it was to make a substantive application to register their title. However, section 15(3) of the Land Registration Act 2002 put paid to that because it prevents landowners from registering cautions against first registration in respect of their own land. Consequently, landowners must now apply for voluntary first registration in order to take advantage of the protection of the land registration system.
Turner v Chief Land Registrar [2013] EWHC 1382 (Ch) serves as a useful reminder of this rule and highlights a point of law that is easily forgotten. The applicant was a squatter who had been in possession of unregistered land since 2007. He applied to register a caution against first registration even though he had not been in possession of the land for long enough to apply to be registered with the title himself. He explained that he wanted to be notified of any application for first registration so that he could check whether the applicant was in fact the legal owner of the paper title. The Land Registry rejected the squatter’s application, citing section 15(3).
The High Court upheld the Land Registry’s decision. The judge agreed that the squatter had an estate in land and ruled that he was, as a result, bound by section 15(3), even though his estate was not yet capable of registration. The judge explained that the squatter had acquired an estate in land, because squatters acquire an independent fee simple from the moment they first take adverse possession of land. They are protected by their act of possession. They can sue strangers for trespass or nuisance; they can convey the land and, if they die, the land will pass under their will or intestacy. However, the paper owner retains a better title and can evict squatters unless and until they have been in adverse possession for sufficient time to bar the paper title.
The squatter tried to sidestep the restriction on registering cautions against first registration in section 15(3) by arguing that he was, nonetheless, entitled to register a caution under section 15(1)(b) because he had an interest that affected the freehold estate. However, the judge ruled that the squatter’s interest was not an interest that bound the legal owner.
Did the decision infringe the squatter’s human rights? The judge thought not; if someone other than the paper owner were to be wrongly registered as the proprietor, the squatter could apply for rectification of the register.
Allyson Colby is a property law consultant