‘The mirror is still cracked within the land registration system, meaning the land
register does not reflect all interests in land. This unfortunate situation is problematic
for vendors and purchasers alike.’ Critically evaluate this statement.
The objective of this essay is to critically evaluate whether the crack in the mirror is still
visible within the land registration system. In England and Wales, the Land Registration Act
(LRA) 2002 1 echoes the LRA 1925 Act 2 underpinning the whole economy and seeks to
reflect the land’s character. This system is consequently paramount to achieve fairness and to
avoid purchasers being bound by interests unknown to them, however, obstacles like
overriding interests have been identified by the Law Commission which proves this ‘crack in
the mirror’. In practice, I agree the mirror is still cracked, but arguably it was always intended
to be. A discussion will be made on how overriding interests shape this irreflective
registration mechanism and how this is problematic for vendors and purchasers.
Contextually, the mirror principle was proposed to cure the earlier flaws of the doctrine of
notice, the original system of unregistered deeds where people were bound by equitable
interests. Sir Benjamin Cherry 3 issued that the mirror intended to encourage free alienability
and to banish those interests behind the curtain through the pro purchaser system facilitating
purchases between buyers and sellers. Yet the principal aim was to simplify and accelerate
the speed of registration as registering every interest was held unsuitable. Resultantly,
schedule 3 of the LRA 2002 4 established overriding interests (OIs) which do not appear on
the register but override those within it. This has created a persistent crack in the mirror
principle, rendering the register as ‘unsatisfactorily inconclusive.’ 5
The process of e-conveyancing 6 was introduced by the Law Commission in 2006 to speed up
transferability and enhance the security of registration, however, this has only been partially
achieved. Today, only registered interests are placed on the electronic service and not those
unregistered including short leases and actual occupation. This “absence and reluctance” 7 of
a fully functioning system, particularly down to fraud’s endemic nature, exhibits the cracked
1
Land Registration Act (LRA) 2002.
2
LRA 1925.
3
H. A. H., “Sir Benjamin Cherry's Lectures on the New Property Acts. The Solicitors' Law Stationery
Society, Ltd.1926. Pp. 191. 6s.” (1926) 2 The Cambridge Law Journal 416.
4
LRA 2002, sch 3.
5
Nicola Jackson, ‘Title by Registration and Concealed Overriding Interests: The Cause and Effect of
Antipathy to Documentary Proof’ (2003) 119 LQR 660, 690.
6
LRA 2002, s 93.
7
Law Commission, Updating the Land Registration Act 2002 (Law Com CP No 227, 2016) ch 20.
, mirror as those behind the curtain fail to be reflected, thus is prima facie. Despite such efforts
to conserve an accurate register through e-conveyancing, the judiciary’s broad interpretation
of actual occupation subverts the mirror principle. Under Schedule 3 paragraph 2, 8 OIs bind
purchasers even if they are not on the register and these following cases “broaden the
success” 9 by establishing actual occupation, demonstrating the crack. In Chhokar v
Chhokar, 10 the symbolic presence of belongings during a temporary hospital stay made actual
occupation suffice. Moreover, in Link Lending Ltd v Bustard, 11 Mummery LJ proved actual
occupation because furniture was fixed and the claimant had no ‘wish and intention’ to leave
an involuntary long-term psychiatric hospital. Such expansion of the term “runs the risk of
undermining the very foundations of the 2002 Act” 12 of trying to reduce OIs. To provide a
conclusive register to conform with land law, statutory reform is required to clarify the
meaning of actual occupation and confine the scope of OIs. Until then, the mirror is cracked
for the foreseeable future.
Nevertheless, this cracked mirror essentially protects vulnerable parties within actual
occupation under schedule 3. 13 In Caunce v Caunce, 14 Mrs Caunce had actual occupation and
purchase price of the house; however, Stamp LJ was arguably sexist not reasonably seeing
her equitable interest because the husband was consenting on behalf of both. This was
overturned in Boland 15 when Mrs Boland’s interest took priority over the bank mortgagee.
Comparably, in Tizard, 16 despite the couple’s separation and husband fooling the bank by
hiding the wife’s belongings, actual occupation and OIs would have been apparent if the
circumstances were thoroughly checked since Mrs Tizard regularly visited the house.
Accordingly, her OI protected her vulnerability over constructive notice. Hunter strengthens a
feminist perspective on the need for OIs remarking how women are disadvantaged from
beneficial interests because of the gender pay gap, thus need more protection because “courts
8
LRA 2002, sch 3(2).
9
Barbara Bogusz, ‘The Relevance of "Intentions and Wishes" to Determine Actual Occupation: A
Sea Change in Judicial Thinking’ [2014] Conv 27, 27.
10
[1984] FLR 313.
11
[2010] EWCA Civ 424, [27] (Mummery LJ).
12
Christopher Bevan, ‘Overriding and over-extended? Actual occupation: a call to orthodoxy’ (2016)
2 Conveyancer and Property Lawyer 104, 105.
13
LRA 2002, sch 3.
14
[1969] 1 WLR 286.
15
Williams & Glyn’s Bank v Boland [1981] AC 487.
16
Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783.
register does not reflect all interests in land. This unfortunate situation is problematic
for vendors and purchasers alike.’ Critically evaluate this statement.
The objective of this essay is to critically evaluate whether the crack in the mirror is still
visible within the land registration system. In England and Wales, the Land Registration Act
(LRA) 2002 1 echoes the LRA 1925 Act 2 underpinning the whole economy and seeks to
reflect the land’s character. This system is consequently paramount to achieve fairness and to
avoid purchasers being bound by interests unknown to them, however, obstacles like
overriding interests have been identified by the Law Commission which proves this ‘crack in
the mirror’. In practice, I agree the mirror is still cracked, but arguably it was always intended
to be. A discussion will be made on how overriding interests shape this irreflective
registration mechanism and how this is problematic for vendors and purchasers.
Contextually, the mirror principle was proposed to cure the earlier flaws of the doctrine of
notice, the original system of unregistered deeds where people were bound by equitable
interests. Sir Benjamin Cherry 3 issued that the mirror intended to encourage free alienability
and to banish those interests behind the curtain through the pro purchaser system facilitating
purchases between buyers and sellers. Yet the principal aim was to simplify and accelerate
the speed of registration as registering every interest was held unsuitable. Resultantly,
schedule 3 of the LRA 2002 4 established overriding interests (OIs) which do not appear on
the register but override those within it. This has created a persistent crack in the mirror
principle, rendering the register as ‘unsatisfactorily inconclusive.’ 5
The process of e-conveyancing 6 was introduced by the Law Commission in 2006 to speed up
transferability and enhance the security of registration, however, this has only been partially
achieved. Today, only registered interests are placed on the electronic service and not those
unregistered including short leases and actual occupation. This “absence and reluctance” 7 of
a fully functioning system, particularly down to fraud’s endemic nature, exhibits the cracked
1
Land Registration Act (LRA) 2002.
2
LRA 1925.
3
H. A. H., “Sir Benjamin Cherry's Lectures on the New Property Acts. The Solicitors' Law Stationery
Society, Ltd.1926. Pp. 191. 6s.” (1926) 2 The Cambridge Law Journal 416.
4
LRA 2002, sch 3.
5
Nicola Jackson, ‘Title by Registration and Concealed Overriding Interests: The Cause and Effect of
Antipathy to Documentary Proof’ (2003) 119 LQR 660, 690.
6
LRA 2002, s 93.
7
Law Commission, Updating the Land Registration Act 2002 (Law Com CP No 227, 2016) ch 20.
, mirror as those behind the curtain fail to be reflected, thus is prima facie. Despite such efforts
to conserve an accurate register through e-conveyancing, the judiciary’s broad interpretation
of actual occupation subverts the mirror principle. Under Schedule 3 paragraph 2, 8 OIs bind
purchasers even if they are not on the register and these following cases “broaden the
success” 9 by establishing actual occupation, demonstrating the crack. In Chhokar v
Chhokar, 10 the symbolic presence of belongings during a temporary hospital stay made actual
occupation suffice. Moreover, in Link Lending Ltd v Bustard, 11 Mummery LJ proved actual
occupation because furniture was fixed and the claimant had no ‘wish and intention’ to leave
an involuntary long-term psychiatric hospital. Such expansion of the term “runs the risk of
undermining the very foundations of the 2002 Act” 12 of trying to reduce OIs. To provide a
conclusive register to conform with land law, statutory reform is required to clarify the
meaning of actual occupation and confine the scope of OIs. Until then, the mirror is cracked
for the foreseeable future.
Nevertheless, this cracked mirror essentially protects vulnerable parties within actual
occupation under schedule 3. 13 In Caunce v Caunce, 14 Mrs Caunce had actual occupation and
purchase price of the house; however, Stamp LJ was arguably sexist not reasonably seeing
her equitable interest because the husband was consenting on behalf of both. This was
overturned in Boland 15 when Mrs Boland’s interest took priority over the bank mortgagee.
Comparably, in Tizard, 16 despite the couple’s separation and husband fooling the bank by
hiding the wife’s belongings, actual occupation and OIs would have been apparent if the
circumstances were thoroughly checked since Mrs Tizard regularly visited the house.
Accordingly, her OI protected her vulnerability over constructive notice. Hunter strengthens a
feminist perspective on the need for OIs remarking how women are disadvantaged from
beneficial interests because of the gender pay gap, thus need more protection because “courts
8
LRA 2002, sch 3(2).
9
Barbara Bogusz, ‘The Relevance of "Intentions and Wishes" to Determine Actual Occupation: A
Sea Change in Judicial Thinking’ [2014] Conv 27, 27.
10
[1984] FLR 313.
11
[2010] EWCA Civ 424, [27] (Mummery LJ).
12
Christopher Bevan, ‘Overriding and over-extended? Actual occupation: a call to orthodoxy’ (2016)
2 Conveyancer and Property Lawyer 104, 105.
13
LRA 2002, sch 3.
14
[1969] 1 WLR 286.
15
Williams & Glyn’s Bank v Boland [1981] AC 487.
16
Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783.
