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Landnet 28

February 2012

Welcome to Landnet 28.

This year we're celebrating 150 years of serving the property owners and professionals of England and Wales, having started business on 15 October 1862.

Since title number 1 was registered – it took until June 1863! – we've added another 23 million to the Land Register.

But as we glance back at our rich history we also look forward, and this issue of Landnet reports on latest developments such as our first release of free transaction data under the Government's open data plans.

Please let me know what you'd like to see Landnet covering.

Gavin Curry, Editor
0300 006 7299
gavin.curry@landregistry.gsi.gov.uk

Landnet can be made available in other formats on request. If you require Landnet in another format, please contact Customer Support by email customersupport@landregistry.gsi.gov.uk or on 0844 892 1111.

To receive a bulletin every time Landnet is published, please send your name, job title and email address to gavin.curry@landregistry.gsi.gov.uk

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News

Monthly transaction data now available

As part of our commitment to the Government's priorities of economic growth and data transparency, detailed Land Registry transaction information is now being published monthly in addition to the House Price Index.

Released by Land Registry as a member of the Public Data Group, it includes a detailed breakdown of applications by number and type from solicitors, conveyancers and lenders and covers commercial property and land as well as residential property.

The consumer will be better informed by being able to see the volume and types of transactions conducted in England and Wales while the property and finance sectors will be able to use the data to assess trends and movements in the property market.

The transaction data is downloadable for re-use in an accessible and re-useable format under the Open Government Licence (OGL). The following data will be updated monthly.

Number and types of applications by all account customers.
Number and types of transactions for value by all account customers.
Number of searches by all account customers.
Number of applications in England and Wales divided by region and local authority district by all customers (account and non-account).

Chief Land Registrar Malcolm Dawson said: "This data alongside the information which informs our House Price Index can be used to both examine the market but also to inform the public.

"The potential for how information can be used (and re-used) is considerable. As a member of the new Public Data Group, we firmly believe that this dataset and the free release of our price paid information in March will help support transparency and the Government's economic growth agenda."

From March 2012, monthly Land Registry price paid information showing all residential property sales in England and Wales at address level will be published as part of the market trend data. This will be downloadable for re-use under the OGL in the same format as the transaction data.

Restriction initiative supports fraud fight

Home owners who do not live at their property can now make a request for a Form LL restriction – requiring solicitors and conveyancers to certify that someone selling or mortgaging a property is the true owner – to be entered in the register. There is no charge payable.

The anti-fraud initiative has been welcomed by the Law Society. Jonathan Smithers, Chair of the Conveyancing and Land Law Committee, said: "Empty or tenanted properties are more at risk than owner occupied homes and the introduction of this scheme will enable solicitors to help owners to protect their property from fraud and forgery."

Chief Land Registrar Malcolm Dawson said Land Registry took the issue of fraud very seriously.

"We work closely with other organisations including the Law Society to do all we can to reduce the opportunities for fraud and to identify and take corrective action when it has happened," he said.

"This initiative is designed to encourage those who feel their empty or tenanted property might be at risk, to do something to prevent it from being stolen unawares.

"We have introduced a range of additional checks and safeguards in the last four years and work closely with other organisations to do all we can to tackle fraud. While no system can eradicate fraud completely, since September 2009 we have prevented frauds on more than 100 applications representing properties valued in excess of some £47 million."

The request is made by form RQ.

This initiative will be reviewed and evaluated after six months to take account of any lessons or issues that have arisen in that period.

It does not affect the £50 fee for applying for a standard form of restriction, including an application for a Form LL restriction by an owner occupier. This fee remains payable.

Challenging mistakes in the register

Until last month (January 2012), not everyone had the right to challenge a possible mistake in the register.

Prior to that, Land Registry would accept applications for alteration of the register (and rectification is a form of alteration) only from someone who had or was claiming a relevant interest in the land.

However, this policy has changed owing to a recent judicial decision, and so anyone may apply for alteration, even though they do not themselves have what the law refers to as 'standing'.

Paragraph 3.1 of Practice Guide 39 – Rectification and indemnity has been amended to reflect this change in policy.

Improving our website

As part of our commitment to continuous improvement to our online services, we are conducting two surveys that will help inform major changes to our corporate website over the coming year.

You can tell us what you think of the website as a whole and also your opinion of our public guides.

How we protect information

Protecting information is something we take very seriously at Land Registry.

To begin with, we have a clearly defined set of rules that set out how we handle information.

Our terms and conditions describe how our business e-services operate and how we handle information.
Our Privacy Statement explains the types of information we gather and how we use it.
Our website also explains your information rights. Our Information Charter states that "when you supply personal information for purposes outside of our statutory obligations and duties, we will:
- make sure you know why we need it
- ask only for what we need
- protect it and ensure that access to it is restricted
- let you know if we share it with other organisations (unless it is shared for law enforcement purposes)
- make sure we do not keep it longer than necessary".
Your information rights also sets out our obligations under the Data Protection and Freedom of Information Acts.

(Note: Land Registry maintains a public register that does contain information such as the names and addresses of owners and 'price paid'. We are obliged to make this information publicly available.)

Next, within our organisation, we impose stringent safeguards to ensure that we protect information fully.

We are subject to regular and independent accreditation to the International Organisation for Standardisation (ISO) 27001. This monitors how we manage our information security, including measures we take to guard against cyber attack.
We assess ourselves against a government Information Assurance Maturity Model, a process of continuous improvement. We use this process – and our monitoring of the Personnel and Physical Security requirement – to produce an annual Security Risk Management Overview report to the Cabinet Office.
We have also just completed an internal exercise to document our Information Assets. This gives us a detailed inventory of all of the information we hold; how it is used, who has access to it and what security measures we have in place.

Last, but not least, we make sure our staff understand the importance of protecting information.

All Land Registry staff undergo annual Protecting information training. This year we are asking all managers to take their teams through some real-life scenarios that are relevant to the jobs they do.
Senior managers, led by the Senior Information Risk Owner, take part in training events and exercises to make sure that the organisation's information as a whole is properly protected and we can react quickly if something goes wrong. Our IT security and Information Management teams undergo specialist training too.

Celebrating 150 years

Land Registry first opened its doors to business on 15 October 1862 following the passage of Lord Chancellor Westbury's Land Registry Act.

We'll be celebrating our 150th anniversary over the coming months by delving into our rich history and highlighting some of the landmark events and personalities.

Brent Spencer Follett: the first Chief Land Registrar

Brent Spencer Follett was the first and also, at 24 years, the longest serving Chief Land Registrar.

Born in Devon in 1809, he studied at Inner Temple and Lincoln's Inn and was called to the bar in 1833. In 1851 he was appointed a QC and became a bencher of Lincoln's Inn.

After serving as Conservative MP for Bridgewater in Somerset, Mr Follett was appointed Chief Land Registrar by the Liberal Lord Westbury at an annual salary of £2,500.

His staff at 34 Lincoln's Inn Fields initially comprised his deputy Mr Holt, two clerks, a housekeeper and a porter.
Mr Follett backed the idea of compulsory registration in evidence to the 1870 Land Transfer Commission but the resulting 1875 Land Transfer Act did not take it up. He continued to argue for compulsion to a Parliamentary Select Committee in 1879.

Mr Follett died in Cannes in January 1886 and is commemorated by a memorial plaque at Topsham church in Devon.

Services

Helping you find out more about our Add Value services

You may or may not be aware that Land Registry has created a portfolio of Add Value services.

Add Value services are for professionals and members of the public who want definitive property and property ownership information in user-friendly formats direct from the most trusted provider. Our services help you manage your records, keep track of your markets and identify business opportunities.

In our recent Add Value satisfaction survey, customers told us that our website should be clearer, less technical and easier to navigate. We took this feedback on board and set out to create our new and improved Add Value internet pages.

Each product/service now has its own dedicated page detailing:

an overview of the product
the customer groups that use it
how you use it
examples of how it can add value to your work
its features.

Practice

Adverse possession: compare your applications here – freehold land

In the first of two articles on adverse possession, a Land Registry lawyer compares applications based on adverse possession of freehold land

Television is full of adverts encouraging us to compare different brands of insurance. If it's not a meerkat in a smoking jacket, it could be a tenor in a tuxedo or a lady in a stripy jumper. While this article may not have the appeal of a cute furry animal or be able to hit the high notes, its aim is to compare elements of applications based on adverse possession that relate to unregistered and registered freehold land. Applications relating to leasehold land will be compared in a later article.

Before 13 October 2003, the Limitation Acts applied to both unregistered and registered land and an application to register the squatter's title was basically the same, although the process was different. However, the Land Registration Act 2002 (LRA 2002) introduced a new regime for applications to register a title to registered land based on adverse possession.

This article looks at differences and similarities between adverse possession applications of unregistered land and of registered land where adverse possession was completed by 12 October 2003 and completed on or after 13 October 2003.

The effect of adverse possession and the way that it can lead to a squatter being registered as proprietor of a title differs depending on whether the land being claimed is an unregistered or a registered title. However, what is meant by 'adverse possession' stays the same. Irrespective of whether the land is unregistered or registered or when the possession started, the squatter still has to show that they were in 'adverse possession'. This article will not, however, look at what is meant by 'adverse possession' but what to consider when, having been in 'adverse possession', the squatter is entitled to make an application.

Please note that it is not possible to deal with all the details of adverse possession in just two short articles. For more detailed guidance on Land Registry's approach to applications based on adverse possession see Practice Guide 4 – Adverse possession of registered land and Practice Guide 5 – Adverse possession of (1) unregistered land and (2) registered land where a right to be registered was acquired before 13 October 2003.

First, what happens to the documentary title?

– Unregistered land

Once the relevant limitation period has expired (see 2 below), the documentary title is extinguished.

If an extinguished title were then to be registered, the proprietor would take subject to the squatter's title if the squatter was in actual occupation at the time of registration (section 11(4)(a), and paragraph 2 of Schedule 1 to, LRA 2002) or if the proprietor had notice of it (section 11(4)(c), LRA 2002.

The squatter can apply to register the title that they acquired when they first entered into possession. Registration will normally be with possessory title.

But, see 5 below.

– Registered land

a) Transitional provisions under paragraph 18, Schedule 12, LRA 2002 ('the transitional provisions')

This is where the squatter claims to have been in adverse possession of registered land AND the relevant limitation period under the Limitation Act expired before 13 October 2003.

The squatter is "entitled to be registered as the proprietor of the estate". There is no provision for the squatter to be registered with an inferior class of title.

The entitlement to be registered is also an interest in land that may be protected by notice.

b) Under Schedule 6, LRA 2002 ('Schedule 6')

The Limitation Act periods do not apply. Adverse possession for the necessary period only qualifies a squatter to make an application under the Schedule 6 procedure. Squatters who qualify under the transitional provisions have the choice of applying under the transitional provisions or under Schedule 6.

If successful, the applicant becomes the new registered proprietor of the registered estate, with the same class of title as that of the previous registered proprietor.

So, how long before an application can be made?

– Unregistered land

Normally, 12 years.

But, 30 years where title is vested in the Crown or in a spiritual or eleemosynary corporation sole.

And, 60 years for Crown foreshore.

Special provisions apply in respect of minority, disability and some trusts.

– Registered land

a) The transitional provisions

As for unregistered land.

b) Schedule 6

Normally, 10 years.

But, 60 years in respect of Crown foreshore.

Special provisions apply in respect of minority, disability and some trusts.

What about acknowledgments of title?

– Unregistered land

Written and signed acknowledgements of the documentary title will re-start the limitation period.

A written and signed offer to purchase the title may amount to an acknowledgement.

– Registered land

a) The transitional provisions

As for unregistered land.

b) Schedule 6

Acknowledgements as such are not relevant, because limitation periods do not apply.

But, the nature of the acknowledgment could suggest the squatter was not in 'adverse possession' and, therefore, was not entitled to apply.

Can successive squatters' periods be added together?

– Unregistered land

The documentary title is extinguished once the limitation period has elapsed.

The limitation period may be established by a series of adverse possessors of the land. So, if A (the documentary title owner) is dispossessed of their land by X who, in their turn, is dispossessed by (or transfers their rights to) Y, A's title will be extinguished, provided that the two periods together total at least 12 years.

– Registered land

a) The transitional provisions

As for unregistered land.

b) Schedule 6

The applicant for registration (and any predecessor in title) must have been in adverse possession for the necessary period.

This does not include an applicant who has dispossessed a previous squatter.

But, Squatter A may apply where they had been dispossessed by Squatter B but had then retaken possession from Squatter B.

What happens to the squatter's possessory fee simple?

– Unregistered land

It can be registered using form FR1.

But, any mistaken registration of the documentary title would have to be cancelled first.

– Registered land

a) The transitional provisions

The entitlement to be registered as proprietor of the existing registered estate arises automatically.

b) Schedule 6

It is expressly extinguished when the squatter is registered.

What about incumbrances on the documentary title?

– Unregistered land

The squatter will be bound by all legal and equitable interests created before the squatter entered into possession.

This is because legal interests bind the whole world and equitable interests are good against everyone who is not (broadly) a purchaser for value.

The squatter would not appear to be bound by interests created after they have entered into possession.

– Registered land

a) The transitional provisions

It is difficult to see how the adverse possession of the encumbered estate can affect the incumbrances. Notices in respect of incumbrances will not be cancelled automatically on registering the squatter as proprietor.

b) Schedule 6

The LRA 2002 provides that registration under Schedule 6 does not affect the priority of any interests affecting the estate, so notices in respect of incumbrances will not be cancelled automatically.

And charges?

– Unregistered land

As with other incumbrances, charges existing before the date on which the squatter entered into possession will bind their title unless separately extinguished. There is no provision for apportionment of charges.

Charges that post-date the adverse possession will not normally bind the squatter.

– Registered land

a) The transitional provisions

As for other incumbrances (see above).

Before 13 October 2003 rights acquired or in the course of being acquired by limitation were overriding interests.

But, that will not automatically apply now.

If not overriding and not protected by notice, the squatter's entitlement to be registered may not bind the registered proprietor of a later registered charge.

b) Schedule 6

The applicant will take free from registered charges affecting the estate immediately before their registration unless a counter notice has been served and the applicant has successfully met one of the conditions in paragraph 5 of Schedule 6.

There are rules about apportioning charges that will continue to bind the applicant after registration.

Finally, which application?

Squatters may be in a position where they have an option as to how to proceed. Where land is unregistered, they may either sit tight and do nothing on the basis that the documentary title owner's title has been extinguished or they may apply for first registration of title. If the land is registered and the squatter claims that the adverse possession was completed before 13 October 2003, they may apply under the transitional provisions, Schedule 6 or even both.

It will depend on the individual circumstances as to which course of action may be preferable. For example, in relation to unregistered land, if one of the 'extended' limitation periods were to apply, registration with a possessory title may appear more 'visible' and therefore susceptible to challenge. For example, a squatter may have registered with possessory title based on 12 years adverse possession and it then turns out that the documentary title owner is the Crown and the squatter cannot show 30 years. Similarly, a registered charge that affects a squatter may be apportioned under Schedule 6 but not the transitional provisions.

Where the squatter decides to apply under the transitional provisions and Schedule 6, they must make separate applications in form AP1 and in form ADV1 respectively and should confirm which application is to proceed first. If the first application were unsuccessful, the second application would then proceed.

Fees on multiple charges

Where two or more associated companies within the same group enter into a single composite legal charge document to secure moneys over each of their individual titles in favour of one lender, there will be a separate Land Registry fee payable to register the charge in respect of each company named as borrower (Article 8(4) of the current Fee Order).

When assessing the fee, you need to consider the number of titles owned by each company separately. For example:

Company A owns 17 registered titles and Company B owns 15. Company C agrees to lend a total of £5,000,000 to A and B, and one charge document is drawn up to secure the loan. The loan is apportioned as to £3,000,000 to company A and the remainder to company B. Although there is one charge document, there are two separate charges – one by A of their 17 titles and one by B of their 15 titles. The charge will result in two separate applications, one to register the charge by A and one to register the charge by B. Although there are more than 20 titles in total, each separate application affects fewer than 20 titles. Because of this, Article 6 of the Fee Order cannot apply and there is a Scale 2 fee payable on each application on the apportioned borrowing. As each charge secures more than £1,000,000, this will be a maximum Scale 2 fee of £260 for each application. A total fee of £520 is payable.

If A had charged 17 titles and B had charged 22 titles, A would pay a Scale 2 fee and B would have to consider whether an Article 6 fee would apply to their application. Article 6 applies where the fee calculated under that article is greater than the equivalent Scale 2 fee. In this case it would be, as the Article 6 fee is £12 per title for 22 titles, totalling £264 whereas the Scale 2 fee for a charge of £1,000,000 or more is £260. A total fee of £524 is payable.

Note: Article 8(4) is not restricted to commercial charges, but the situation of multiple charges being contained in a single deed arises most commonly in commercial situations.

See Practice Guide 33 – Large scale applications (calculation of fees).

For further information, please speak to the Bulk Applications Team: Nicola Watchman on 0300 006 6286 or Gary Tregunna on 0300 006 6051.

Publications

Practice and public guides

You can find the latest versions of all our practice guides, practice bulletins and public guides on our website.

Annual report 2010/11

Our 2010/11 annual report and accounts are available to download in PDF.

Business Plan 2011/12

Our Business Plan 2011/12 includes our strategic objectives and key performance indicators and targets.

Independent Complaints Reviewer's annual report for 2010/11

Our Independent Complaints Reviewer's annual report for 2010/11 describes how we responded to the issues upheld by our complaintsreviewer.