One of the questions property lawyers are often asked is whether or not a person who holds an unregistered title should register their land. This can arise both in respect of freehold and leasehold land. It is not always an easy question to answer but recent case law and changes to the policy at HM Land Registry suggest that it is becoming increasingly more attractive to register your land than leave it unregistered.
Cons of registration
The first thing that is of concern to certain clients if the fact that registration ensures that the title becomes public. Given that HM Land Registry is an open register, title documents will be scanned and made available through the Land Registry portal. This can often make a difference to neighbours who have suspicions, but no proof, of matters such as restrictive covenants in their favour and can otherwise prove a useful resource should there be any title deficiencies or ongoing issues between neighbours. There can also be commercially sensitive information in these documents and therefore privacy is something never to be underestimated.
This can make it very difficult for third parties to enquire about your assets or otherwise pursue claims against you.
Secondly, there is also the cost. Despite the Land Registry offering lower fees for voluntary registrations, there is always the cost both in time and money of registering a title. Given that many unregistered blocks of land can tend to be in landed estates or in farming families, where significant amounts of land are concerned, often involving complicated property issues, it often requires the involvement of an experienced lawyer to assist in the process. Added to that, numerous requisitions that the Land Registry may raise means that the cost of registration and the time and cost involved to the land owner can mean that it is not often an attractive proposition.
Pros of registration
There are obvious benefits to registration. Most property lawyers in their lifetime will end up having to make an application to the Land Registry when someone has lost their unregistered title deeds whether through fire or misplacement. Having that Government backed guarantee gives peace of mind. However, there are numerous legal benefits now to having land registered, some of which are set out below.
The benefit of having deeds registered means that other people know exactly what your rights are and ensures that everyone is on notice of what any land owner considers the position to be. That is not to say that there cannot be challenges – there is always scope for some form of challenge! – but it can help to dispose of any arguments before they expand and/ or become costly. It also allows for parties to state their claim in respect of rights over neighbouring property such as rights of way claimed by use over time. Whilst there are many rights which are deemed so important that a lack of registration is irrelevant – referred to as an “overriding interest” – in recent times, the law has looked to reduce the number of overriding interests, thereby placing property owners in peril. This can often be to the benefit of the registered proprietor or a purchaser of land buying from a registered proprietor.
The most obvious benefit is the protection afforded by people knowing you own the land. In relation to adverse possession – sometimes referred to as squatters rights – there are also other benefits. Whilst it is possible to search the index map at the Land Registry to see whether a piece of land is registered or not, mere lack of registration does not mean to say that the land is not owned or occupied by another party. However people will often look to try and gain title to the land which is unregistered, knowing that the law is more favourable for squatters of unregistered open land.
The rules for unregistered land allow a squatter to claim ownership after 12 years use and occupation whereas the regime introduced by the Land Registration Act 2002 effectively always gives a registered proprietor the opportunity to challenge any squatter trying to claim title to any parts of their registered land. Whilst there are of course exceptions, in principle, the benefit of having land registered assists greatly in this regard.
Fairweather v. St Marylebone Property Co Limited  AC510
The above applies particularly in relation to freehold land. However, it is also worth noting that the Land Registry has recently changed its policy in relation to leasehold land. Previously, following the case of Fairweather v. St Marylebone Property Co Limited  AC510, the Land Registry was always slow to grant an application for first registration of leasehold land gained through adverse possession. This was due to the fact that it was always considered possible for a dispossessed leaseholder to surrender their lease to their landlord which would thereby have the effect of determining the leasehold term and allowing the landlord the right to possession of the property. This has always been a controversial decision but the Land Registry has now reversed its procedure and policy allowing registration, albeit with a qualified title. Further, this title will be a qualified freehold title, not leasehold title.
Whilst there is always going to be various factors to consider in any individual case, in principle, land registration is even now more preferable than leaving your title unregistered. This is clearly a policy decision on behalf of the Government for this as it has always been the preference for all land to be registered if at all possible.