Unregistered Land Part 1

To describe a parcel of land as ‘unregistered’ means one thing only: that the title to the
land (the freehold or leasehold estate) is established from old-fashioned title deeds and is
not to be found in the register of titles governed by the LRA 2002. Unregistered land is
land for which the title must be proved from the conveyancing history of the land as
evidenced by the documents of title (i.e. the deeds and related documents such as those
creating easements) and not by inspecting a register. It does not mean that there is no provision or opportunity for the registration of other rights and interests affecting the land
For, ‘unregistered land’ has its own system of an independent partial registration. It is important that this is appreciated fully. Indeed, it is essential from the outset to remember that the system of unregistered land (with its partial system of registration) operates completely separately from the system of registered land. Of course, they both deal with the same type of property rights and they share the concept of overreaching, but they do so indifferent and mutually exclusive ways. So, if title to land is not registered under the LRA 2002, it is ‘unregistered land’ and is to be dealt with according to the principles.
Lets take a look at estates in unregistered land.
Title to land is not recorded in a register, nor is it guaranteed by the State through legislation. However, the same types of estate may exist at law and in equity in unregistered land as may exist in registered land. The substantive law of estates is governed by the LPA 1925 and the ‘freehold’ and ‘leasehold’ have the same essential character when found in either registered or unregistered land, albeit that they are proved and transferred in different ways. Thus, any purchaser of an unregistered estate in land must seek out the ‘root of title’ in order to ensure that the seller has a good and safe title to pass on. Title is proven by an examination of the title deeds and documents relating to previous dealings with the land. In addition, a prudent purchaser will make a
thorough physical inspection of the land in order to ascertain whether there are any obvious defects of title and whether there are any obvious third-party rights (e.g. frequently used easements) that might prejudice his use of the land, for example, is anyone else in possession of some of the land or are there any boundary issues?
As the title is not registered, the quality of that title is determined according to the old
common law rules of title as modified by the LPA 1925.7
Thus, a legal title, whether freehold or leasehold, encapsulates the essence of ownership for the duration of the estate granted and the owner of a legal estate in unregistered land need not fear that his proper title will be compromised by any extraneous issues affecting the land, other than
those interests binding as proprietary rights according to the rules of unregistered conveyancing. With an equitable estate for example, an equitable lease,
the estate owner also enjoys full rights over the land subject to the difficulties affecting all equitable interests in unregistered conveyancing: that is, they rank second to any previously created equitable right and are vulnerable if there is a sale of a legal estate in the land to a purchaser for valuable consideration.
‘Interests’ in unregistered land are of the same type as interests in registered land. There are easements, mortgages, covenants, profits, co-ownership rights, options and estoppels, as these are creatures of the substantive law. They are examples of proprietary rights that may exist over someone else’s land (more accurately, over their estate in it).
However, it is the machinery of unregistered land - the way in which these interests
affect another person’s land particularly on sale or mortgage - that is different from the registered title.
Legal interests in another person’s unregistered land, such as legal easements, legal mortgages and legal leaseholds, are, in the main, automatically effective against the land over
which they exist, even if they were granted by someone other than the landowner.11
They will bind automatically any person coming into ownership or occupation of the land, be they a purchaser, recipient of a gift, devisee under a will or an adverse possessor. This is the effect of the rule that ‘legal rights bind the whole world’ and it is a principle of utmost importance in unregistered conveyancing. Necessarily, it requires a clear
distinction to be made between legal and equitable estates and interests. However, once a legal right has been established over the burdened land, there is no need to make further enquiries in order to assess whether the legal right is binding. The ‘state of mind’ of any transferee of the land, the nature of his title or indeed any other matter is not relevant: legal rights bind the world.