15.2.5. The mirror, curtain and guarantee principles

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any event. We return to this point when we look at overriding interests in more detail below.

15.2.6. Consequences of non-registration

Looking at registration systems in general, there are various ways of dealing with a failure to utilise the registration machinery provided. One way is to make registration entirely optional, a privilege that can be acquired by any eligible person who chooses to take advantage of it. This involves providing benefits for those who register which are not available to those who do not. At the other end of the spectrum, registration can be made compulsory and the system can not only withhold benefits from those who default but also impose penalties on them.

Ship registration moved from one extreme to the other within a relatively short period. Under the Merchant Shipping Act 1894, which was the principal registration Act for nearly a century, it was compulsory for a British ship to be registered in the British Shipping Registry, and failure to comply was a criminal offence. However, the Merchant Shipping Act 1988 made registration voluntary, and then, under the Merchant Shipping Act 1995, the effect of registration was limited to five years, so that anyone who wants to enjoy the benefits of registration must reapply every five years. Registration is therefore now a privilege. This works because it is virtually impossible for a ship to operate unless it is registered in some jurisdiction or other, so the only real option facing a ship owner is where, not whether, to register.

As far as land registration is concerned, we have already seen that from the outset the system has relied on both compulsory and voluntary routes for entry into the system, and seems likely to continue to do so. However, once titles are in the system, it has always been compulsory to use the registration machinery whenever the registered title holder makes a ‘registrable disposition’ (defined in section 27 of the 2002 Act to cover, essentially, any transfer of the interest itself, any grant of a lease for more than seven years, any grant of a legal mortgage, and any grant of a legal easement or profit). Any such disposition must be ‘completed by registration’, i.e. the person taking the benefit of the disposition must apply to the Land Registry to be registered as title holder. At present, there are two sanctions provided for failure to do so. The first is that the disposition does not have legal effect until the person taking the benefit of the disposition has become registered – i.e. until registration, her interest remains equitable only (section 27(1)). The second is that her interest may not be enforceable against anyone else who acquires a registrable interest in the land for valuable consideration and becomes registered title holder of his interest. This is because of section 29 of the 2002 Act, which provides in effect that any purchaser (meaning anyone who acquires his interest for valuable consideration) who becomes a registered title holder takes free from any interest that is neither registered, nor protected on the register by a notice, nor categorised as an overriding interest. A person who acquires an interest under a registrable disposition but does not

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of their total productive capacity, their total revenue and to make of this assessment a record which should thereafter serve as the basis of future assessments.

This was clearly instituted to serve the needs of the state for the purpose of the assessment and collection of revenue, whereas the purpose of deeds or title registration is to protect the interests of landowners. A cadastral system has three main points of difference from a system of title registration.

(i)A cadastre is a systematic record designed to prevent a landowner evading the payment of tax. The compilation of a register of title, in contrast, is usually sporadic when and where transactions occur.

(ii)A cadastre necessitates classification and valuation so that the tax can be assessed, whereas registration of title is not directly concerned with value. Cadastre plans do not admit to any flexibility in the interpretation of boundaries as is found where registration is with general boundaries only.

(iii)A cadastre is primarily concerned with the payment of taxes and not with proof of ownership as is the case with the registration of title nor with the aim of giving publicity to conveyancing transactions as is the case with deeds registers.

Where there has been a marriage between title registration and the cadastre, the cadastre incorporates registration of title and the resulting system consists of the following two basic parts:

(i)a cartographic part consisting of large-scale maps which are based on surveys including aerial photographs and which indicate the division into parcels of an area together with appropriate parcel identifiers;

(ii)a descriptive part containing registers or files which record ‘legal facts’ (deeds) or ‘legal consequences’ (titles) and other physical or abstract attributes concerning the parcels depicted on the map.

From the registration of title point of view there is a potential weakness in a cadastrebased system in that priority may be given to the maintenance and expansion of fiscal information and to items of unchanging character, such as the type of soil, to the prejudice of the effective recording of matters vitally important for property owners for the creation and disposition of interests in land. This was the case in parts of Eastern Europe where the requirements of the state were taking precedence over the needs of landowners, as indeed they had in the original Napoleon concept. Nevertheless, there is great potential for development here as can be seen in the system developed in Sweden where the land records are held on two registers, each operated by a separate government organisation. The first is the ‘Property Register’ or cadastre which is maintained in cadastral offices spread throughout the country. The second is the ‘Land Register’, which is maintained in land registries that are adjuncts of the Lower Courts. From the comprehensive information obtained from these registers and from other national and local authorities a Land Data Bank has been developed on a central basis which contains not only data essential to land titles but also information on many other matters relating to the land including values for taxation purposes and planning matters.