PART 7  SPECIAL CASES

CLAUSE 80   COMPULSORY REGISTRATION OF GRANTS OUT OF DESMESNE LAND

63. Under English property law, the Crown is the ultimate owner of all land, and both freehold and leasehold estates are held underneath that Crown interest. The Crown land not subject to any freehold or leasehold interests is known as "desmesne land". Such land is not held for an estate, and at present only estates in land can be registered; so that Crown lands cannot attract the considerable benefits of registration. Clause 79 enables Her Majesty to grant an estate in relation to desmesne land to correct that. Clause 80 makes registration of title compulsory when the Crown makes a disposal of desmesne land to a third party, so ensuring that former desmesne land entering the ordinary property market is registered in the usual way. The triggers for first registration on the disposal of demesne land are equivalent to the some of the situations where compulsory registration is triggered on the disposal of freehold or leasehold land. This clause gives the Lord Chancellor power by order to extend the triggers in respect of desmesne land in the same way as clause 5 empowers him to do for freehold or leasehold land. He can also make, under a Henry VIII power, consequential changes to wider legislative provisions, similar in extent to, and for the same reasons as, those set out in clause 5. The exercise of these powers are subject to annulment by resolution of either House of Parliament.

CLAUSE 81   DESMESNE LAND: CAUTIONS AGAINST FIRST REGISTRATION

64. The Bill applies the regime allowing cautions against first registration of land set out in clause 15 to desmesne land as well as freehold and leasehold land. Clause 81 contains a power to adapt the regime set out in the Bill to the extent that it is necessary to do so, to apply to desmesne land. This level of detail can be most appropriately dealt with in rules as it is important to maintain flexibility in this area. Rules can cater for any unforeseen practical effects of the extension of applicability of these provisions to Crown land.

CLAUSE 82   ESCHEAT ETC

65. All freehold and leasehold interests in land are capable of determination, in the case of freehold usually when an executor, trustee in bankruptcy or company liquidator feels that the property is more onerous than its value to the estate. Clause 82 deals with situations where all freehold and leasehold interests in the land have come to an end, for whatever reason, leaving the land in the ownership of the Crown but without any freehold or leasehold estate. The clause provides that rules may make provision about the determination of registered freehold estates and the registration of newly created freeholds relating to the same land.

66. Rules may provide for registration requirements to be met on determination; for entries relating to a former freehold estate to remain on the register; for entries to be made relating to a former freehold estate; and for requirements on the registration of a former freehold estate. This level of detail can be most appropriately dealt with in rules as it is important to maintain flexibility in this area. This has long been recognised as a complex area of law. Rules will be made in consultation with the Crown Estate and the Duchies of Lancaster and Cornwall.

CLAUSE 85     BONA VACANTIA

67. Clause 85 provides that rules may make provision about how the land registration system deals with the passing of title to a registered estate or charge as bona vacantia. An interest in land becomes bona vacantia when an individual dies with no one to survive them and become entitled to their estate, or more commonly, when a company is dissolved without realising that it still owns an interest in land. This is a complex area of law and the detailed provisions applicable to it are more appropriately dealt with in rules.

CLAUSE 86  BANKRUPTCY

68. Clause 86 sets out the continuing responsibility for the registrar to record on affected titles when owners have had a bankruptcy petition issued against them or a bankruptcy order made, and specifies the effect that such entries have whilst they appear in the register. Entries can be cancelled by the registrar, and the procedures for cancellation will be set out in rules.

CLAUSE 88   INCORPOREAL HEREDITAMENTS

69. Clause 88 provides that although the general scheme of the Bill will apply to all types of legal estates and interests in land, there is a delegated power for the Lord Chancellor to modify its application to:

• rentcharges (which arises in certain circumstances when the property is charged with the payment of a regular sum of money);
• franchises (e.g. the right to hold a market or a fair);
• profits à prendre in gross (the right to take something from the land like soil or minerals); and
• manors.

This power is important to allow sensible adjustments to be made to way the land registration system applies to these less common rights which have unusual features, the implications of which may not necessarily come to light until the detailed supporting rules and consequential procedural changes are being finalised. The special treatment of rentcharges and manors are currently subject to rules, but the independent registration of franchises and profits is new to the Bill.

CLAUSE 89   SETTLEMENTS

70. A Settled Land Act settlement was a method previously used to ensure that property remained in a family through the generations. Although such settlements can no longer be created, they will continue in existence for many years to come and necessitate special land registration rules to reflect the amended status of the registered owner to deal with the land.

71. Clause 89 specifies that rules can be made as to the application to registered land of the enactments relating to settlements under the Settled Land Act 1925. This degree of detail is more appropriately dealt with in rules.