Public and private guarantees of title to registered land

AuthorS.A.A. Cooper
PositionLecturer in Law, Cayman Islands Law School
Pages10-28
PUBLIC AND PRIVATE
GUARANTEES OF TITLE TO
REGISTERED LAND
S. A. A. COOPER*
The purpose of this paper is to summarise the total effect of the availability
of the various sources of compensation for a purchaser of land who is
affected by a defect in title, to compare the degree of purchaser protection
from private and public sources, and to consider the applicability of recent
English reforms. The paper looks at the conveyancing law and practice of
the Cayman Islands, which provides a modern and simple system, but the
paper has direct relevance to the other islands of the Caribbean which have
adopted the land registration system originating in Kenya and utilise a
conveyancing procedure similar to the Cayman Islands. The paper has
indirect relevance to other forms of land registration, where similar issues
occur but under differing registration statutes.
WHAT
GUARANTEE IS NEEDED WHERE TITLE IS REGISTERED?
One of the three cardinal principles of any system of registration of title is that
the register acts as a mirror, reflecting accurately, completely and irrefutably
the current facts material to title, but there are of course limits to this principle
in every system.
Lecturer in Law, Cayman Islands Law School.
1 Including Anguilla's Registered Land Ordinance 1974, Anguilla's Registered Land Act 1975,
British Virgin Islands' Registered Land Ordinance 1970, Montserrat's Registered Land
Ordinance 1978, Turks and Caicos Islands' Registered Land Ordinance 1967, Belize's
Registered Land
ACT
1977.
2 First enacted in Kenya as the Registered Land Act 1963. For commentary and background to
the Act, see S.R. Simpson, Land Law and
Registration
(1976).
3 E.g. Jamaica's Registration of Titles Act 1973.
4 T.B.F.
Ruoff,
An
Englishman
Looks
at
the
Torrens
System
(1957) p.8.
(a) Overriding interests and rectification
The most important omission of the register is the statutory list of overriding
interests provided by the legislation, which affect purchasers of the land
without requiring registration, and may be regarded as "blind spots" which
the mirror does not cover. The list goes beyond the frugal collection of
exceptions to indefensibility in the Torrens systems but falls short of the
extensive list of English overriding interests, for example, leases are only
overriding if they do not exceed two
years,5
and easements created after first
registration are never overriding.6 There is also one species of overriding
inrerest,
"natural
rights",7 which is absent from the English Land Registration
Act 1925 (from which the Cayman list derives), but it has been argued that
these are incidents of proprietorship and special protection as overriding
interests is superfluous. While there is an "actual occupation" category of
overriding interest under the Cayman legislation, that most problematic
overriding interest of English law, the beneficial interest of a person in actual
occupation of the land transferred, has no possibility of being enforced against
a purchaser for value under the Cayman system since a beneficial interest is
automatically overreached by a single
trustee.9
In the Cayman system, rectification of the register is permissible to add an
overriding interest to the register, but further grounds for discretionary recti-
fication are specified in the Acts. The Cayman legislation closely follows the
English10 in this respect. These grounds include fraud, mistake, error and
omission.11 Rectification may be made against a purchaser; however, the plea
of registered proprietor in possession who paid valuable consideration, and
who did not contribute to the error or omission, is a defence to rectification,
5
Registered Land Law
(1995
Revision), s.28(d).
6
Registered Land Law
(1995
Revision), ss.92(4),
28(a).
7
Registered Land Law
(1995
Revision),
s.29(b).
3
R.E. Megarry & H.W.R. Wide,
The
Law
of Real Property
(2000)
6th edn., edited by C
Harpum,
p.
1087.
See also
English
Law
Com.
No.
158,
part.2,21.
In fact the natural rights
need
not be included as overriding
interests as
they
are
supported separately under Registered
Land
Law
(1995
Revision), 27.
9
Registered Land Law (1995 Revision),
s.38{2).
Aliter if value
is not paid: Registered Land Law
(1995
Revision),
s.27.
10
English Land Registration Act
1925,
s.32.
l1 Registered Land Law (1995
Revision),
s.1400); English Land
Registration Act
1925,s.32(l).
The
English rectification power
is
wider than the otters insofar
as
it
allows
this defence to be
overridden
if it would be unjust not to rectify: Land Registration Act
1925,
s.82(3), retention
approved
in Law. Com.254, para.8.52.

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