Title to land in many countries is entirely registered, so why is there so much unregistered land in England and Wales? As usual, we have to look back in time. The modern land registration system derives from the Land Transfer Act 1875, an earlier attempt in 1862 having failed amid complaints of high costs and excessive delay. Neither of these Acts made registration mandatory, however, and it was not until the Land Transfer Act 1897 that the modern system of compulsory registration following sale was introduced.
Initially, local authorities had to opt into the new system. London County Council did so immediately, but others were more reluctant. Middlesex became a compulsory area in 1937 and Surrey in 1952, but Manchester and Birmingham did not become compulsory areas until 1961 and 1966 respectively. By then, compulsory registration was being extended by government regulations. Rural parts of Essex, Hertfordshire, Suffolk and Worcester were the last areas to be brought within compulsory registration, in December 1990.
This piecemeal introduction of compulsory registration on sale has meant that there is no legal requirement to register land that has not changed hands since registration became compulsory for that area. And, as the previous article explains, there has been relatively little enthusiasm for voluntary registration. There are, inevitably, a few exceptions, the principal ones being the requirement introduced as late as 1998 for land to be registered following devolution under a will or intestacy, and the need to register land after the grant of a first mortgage (which has resulted in a surprising number of first registrations following the boom in remortgaging in the past 10 years or so).
The comments above apply to freehold land. The rules relating to the registration of new leases are far more complex. Originally, it was necessary to register a new lease that was granted for a term exceeding 40 years in a compulsory area, whether or not the landlord’s title was registered, and any lease exceeding 21 years where the landlord’s title was registered.
This was simplified on 1 January 1987, from which date any lease in an area of compulsory registration had to be registered if the term exceeded 21 years, regardless of whether the landlord’s title was registered. The 21-year figure was reduced to seven years on 13 October 2003, and it is likely to be reduced to three years before too long.
More information on this topic is available in A short history of land registration in England and Wales, which is available on the Registry’s website at www.landreg.gov.uk.
Peter JG Williams is a real estate practice lawyer at Eversheds LLP
