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MISTAKEN REGISTRATIONS OF LAND: EXPLODING THE MYTH OF “TITLE BY REGISTRATION”

  • Amy Goymour

Abstract

When the Land Registration Act 2002 first came into force, the prevailing academic view was that it had created a system of “title by registration”, such that, where someone (B) is mistakenly registered as owner of another person's (A's) land, he acquires a good title (notwithstanding the mistake) that can validly be conveyed to someone else (C). The thesis of this article is that, whilst the logic of the “title by registration” principle might be conceptually attractive, it has proven to be unworkable in practice, is questionable as a matter of policy, and – looking to the future – ought to be abandoned in favour of a more subtle legislative scheme for resolving A-B-C disputes.

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Corresponding author

Address for correspondence: Ms Amy Goymour, Downing College, Cambridge, CB2 1DQ. Email: acg39@cam.ac.uk.

References

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1 See Schauer, F., “Formalism” (1988) 97 Yale L.J. 509, p. 510; P. Atiyah and R. Summers, Form and Substance in Anglo-American Law (Oxford 1987), pp. 111; and K. Gray and S. Gray, “The Rhetoric of Realty” in J. Getzler (ed.), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London 2003), ch. 10.

2 Hereafter ‘LRA 2002’.

3 Law Commission, Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law Com No 254, 1998), at [10.43], followed by a final report: Law Com No 271 (2001). The phrase ‘title by registration’ originated in Breskvar v Wall (1971) 126 C.L.R. 376 (HCA), at [15].

4 Notable exceptions include Cooke, E., “The Register's Guarantee of Title” [2013] Conv. 85; S. Cooper, “Regulating Fallibility in Registered Land Titles” [2013] C.L.J. 341; M. Dixon, “A Not so Conclusive Title Register?” (2013) 129 L.Q.R. 320; and Lees, E., “Title by Registration: Rectification, Indemnity and Mistake and the Land Registration Act 2002” (2013) 76 M.L.R. 62.

5 See Scottish Law Commission, Report on Land Registration (Scot Law Com No 222, 2010), esp. at [17.33], now implemented via Land Registration etc. (Scotland) Act 2012.

6 Forgeries also occur in the context of powers of attorney, e.g. where the creation or the exercise of the power is forged: Ajibade v Bank of Scotland Plc (2008) REF/2006/0163/0174 (Adjudicator to HM Land Registry (hereafter ‘Adj.’; decisions of the Adjudicator are available via: http://www.justice.gov.uk/tribunals/land-registration); and Fitzwilliam v Richall Holdings Services Ltd. [2013] EWHC 86 (Ch), [2013] 1 P. & C.R. 19.

7 E.g. Attorney General v Odell [1906] 1 Ch. 47 (solicitor); Pinto v Lim [2005] EWHC 630 (Ch) (wife); Archer v Eden (2007) REF/2005/0797/1232/1551 (Adj.) (cohabiting partner); and Stewart v Lancashire Mortgage Company Ltd. (2010) REF/2009/0086 (Adj.) (brother).

8 Matthews, P., “Registered Land, Fraud and Human Rights” (2008) 124 L.Q.R. 351.

9 E.g. Fretwell v Graves (2005, High Ct, unreported) (a rogue, dressed as a postal courier, deceived the registered proprietor into signing for a parcel).

10 Crawley v Gudipati (No 1) (2009) REF/2008/0602, REF/2009/0047/0052 (Adj.); and (No 2) (2010) REF/2008/0602, REF/2009/0047/0052 (Adj.).

11 Park Associated Developments Ltd. v Kinnear (2013, High Ct, unreported).

12 The non est factum doctrine. Voidness can also stem from the void exercise of valid powers of attorney, e.g. ultra vires exercise or exercise after power revoked: Iqbal v Najeeb (2011) REF/2009/1234, 1235 (Adj.).

13 E.g. The Manchester Ship Canal Company v Morris Homes (North) Limited (2009) REF/2008/0442 (Adj.); and Knights Construction (March) Ltd. v Roberto Mac Ltd. (2011) REF/2009/1459 (Adj.), [2011] 2 E.G.L.R. 123.

14 LRA 2002, ss. 96–97, Sched. 6.

15 Khalifa Holdings Aktiengesellschaft v Way (2010) REF/2008/1438 (Adj.); Baxter v Mannion [2011] EWCA Civ 120, [2011] 1 W.L.R.1594.

16 Land Registry, Annual Report and Accounts 201011, p 65 (this figure includes all errors, including avoidable administrative errors by Registry staff).

17 T. Mapp, Torrens' Elusive Title (Alberta 1978), at [4.20]; and Scot Law Com No 222 (see note 5 above), at [1.1].

18 See D. Cavill et al., Ruoff and Roper's Law and Practice of Registered Conveyancing (London, April 2013 release), at [46.037]–[46.040].

19 Alternatively, A could begin as registered leaseholder, chargee, or other interest-holder.

20 E.g., Fretwell (see note 9 above).

21 Note the A-B-C configuration assumes consecutive, not simultaneous, transfers. Where B executes C's charge to finance acquisition of the freehold, B and C acquire their interests simultaneously, and the facts do not fit the A-B-C model: Abbey National Building Society v Cann [1991] 1 A.C. 56. Garguilo v Gershinson (2012) REF//2011/0377 (Adj.) is a case of this nature.

22 [2008] EWHC 893; see also [2008] EWCA Civ 452, [2008] 2 E.G.L.R. 74; [2010] EWCA Civ 1396, [2011] 1 W.L.R. 681; and Guy v Pannone LLP [2009] EWCA Civ 30, [2009] 7 E.G. 90 (C.S.). Materially identical fact patterns arose in Ajibade (see note 6 above), Stewart (see n 7 above) and Iqbal (see note 12 above).

23 Ultimately, A was unable to recover the land free from C's charge in the High Court, and was refused permission to appeal. See further note 92 below. A could have protected its position by putting a unilateral notice on the Register prior to the creation of C's charge, but A's solicitors acted one day too late.

24 [2008] EWHC 3565. Also Ijacic v Game Developments Ltd. (2009) REF/2008/1081/1082/1083 (Adj.).

25 Ultimately, A succeeded owing to a concession made by C.

26 E.g., B acquires a lease, and C a charge, or vice versa; or B acquires a freehold and C an easement.

27 E.g., specific performance is available for enforcing contracts for the sale of land; and actions for the recovery of land are available to those entitled to possession.

28 T. Mapp (see note 17 above) first coined the metaphor. See also Scot Law Com No 222 (see note 5 above), at [21.14].

29 T. Mapp (see note 17 above), at [4.18].

30 Since the LRA 2002, the position might in practice be different: the Registrar might mistakenly regard the void disposition as triggering first registration, such that B, once registered, might confer a good title on C, via sections 58, 23 and 26.

31 Land Registration Act 1925, s. 82(1)(g); Norwich and Peterborough Building Society v Steed [1993] Ch. 116, 132.

32 Ibid., section 83.

33 See P. O'Connor, “Registration of Title in England and Australia: A Theoretical and Comparative Analysis” in E. Cooke (ed.), Modern Studies in Property Law, Volume 2 (Oxford 2003), ch. 5; and A. Fouillée, J. Charmont, L. Duguit and R. Demogue, Modern French Legal Philosophy (Boston 1916), ch. 13.

34 Further, A's loss here makes a mockery of the requirement that dispositions must be effected by deed: Law of Property Act 1925, s. 52. Such formality rules exist, in part, to protect parties against inadvertent or unauthorised actions.

35 Respectively Article 1 to the First Protocol, and Article 8. Article 1 was cited in argument in Rossetti Ltd. v Thresher Wines Acquisitions Ltd. (2009) REF/2008/0633 (Adj.) and Knights Construction (see note 13 above), at [131].

36 See A. Goymour, “Property and Housing” in D. Hoffman (ed.), The Impact of the UK Human Rights Act on Private Law (Cambridge 2011), ch. 12.

37 T. Mapp (see note 17 above), at [3.13] and [4.26].

38 See E. Cooke, The New Law of Land Registration (Oxford 2003),102; and J. Baalman, The Torrens System in New South Wales (Sydney 1951), 134.

39 Scot Law Com No 222 (see note 5 above), at [17.13].

40 NB the Law Commission report itself (Law Com No 271, see note 3 above) failed to explain how its provisions would apply in the A-B-C scenario. See note 59 below.

41 E. Cooke, The New Law of Land Registration (Oxford 2003), 122–129 (and E. Cooke, “The Register's Guarantee of Title” [2013] Conv. 85, 88); R. Smith, Property Law, 4th ed. (Harlow 2003), 260–262; Ruoff and Roper (see note 18 above, September 2004 release), at [46.024]–[46.036]; also B. McFarlane, N. Hopkins and S. Nield, Land Law: Text, Cases and Materials (Oxford 2009), 533–534, 538–542; and D. Fox “Forgery and alteration of the Register under the Land Registration Act 2002” in E. Cooke (ed.), Modern Studies in Property Law (Oxford 2005), ch. 2. See also C. Harpum, “Registered Land: A Law Unto Itself?” in J. Getzler (ed.), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London 2003), ch. 9, who seems to tend towards the orthodox view. However, for views contrary to orthodoxy, see M. Dixon, Modern Land Law, 5th ed. (London 2005), 84–6 (although the 4th ed. (2002) was silent on the issue: p. 77); and J. Farrand and A. Clarke, Emmet and Farrand on Title (London, May 2013 release), at [9.027]–[9.028].

42 See, e.g., Report of the Property Law and Equity Reform Committee on the decision in Frazer v Walker (Wellington, New Zealand 1977), at [4].

43 R. Smith (see note 41 above), 262.

44 On the one hand, arguably C is deemed by section 58 to acquire a property right by registration that is protected by the ECHR: Knights Construction (see note 13 above), at [131]. However, on the other hand, if C's right is defeasible and/or valueless, it may not be protected, unless the Register creates a “legitimate expectation” of a right.

45 See pp. 630–631 below.

46 This registration possibility might itself be valuable: Nouri v Marvi [2010] EWCA Civ 1107, [2011] P.N.L.R. 7 decided that a void disposition constitutes an immediate economic loss to A; arguably a void disposition might conversely confer a corresponding economic benefit on B.

47 E.g. Knights Construction (see note 13 above); Odogwu (see note 24 above), at [3]; Lloyds TSB Bank Plc v Markandan & Uddin (A Firm) [2012] EWCA Civ 65, [2012] 2 All E.R. 884, [51]; and Law Commission, Making Land Work: Easements, Covenants and Profits a Prendre (Law Com No 327) (2011), at [4.12].

48 For use of this metaphor, see Scot Law Com No 222 (see note 5 above), at [3.11].

49 See Westdeutsche Landesbank Girozentrale Respondent v Islington LBC [1996] AC 669, 706–707; D. Fox (see note 41 above); C. Harpum (see note 41 above), pp. 198–199, 202; Ruoff and Roper (see note 18 above, January 2005 release), at [46.032]; and Fretwell (see note 9 above).

50 Thereby generating a constructive trust: Westdeutsche (see note 49 above).

51 Section 69.

52 [2002] EWCA Civ 151, [2002] Ch. 216.

53 Note C does not become legal owner of the interest until registration: LRA 2002, s. 27.

54 See, e.g., Stewart (see note 7 above) (but cf. Ajibade (see note 6 above) where, obiter, indemnity was considered unavailable).

55 Anyone may apply for alteration, whether or not he has private law rights at stake: Burton v Walker [2012] EWHC 978 (Ch). Alterations may be ordered either by the court or the Registrar, although court orders are limited to grounds (a)–(c). If a ground is present, the Register must be altered unless either there are exceptional circumstances (LRA 2002, Sched. 4, paras 2, 3, 6; Land Registration Rules 2003, r. 126; and Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch), [2007] 3 E.G.L.R. 44), or the ‘Schedule 4 defence’ applies (see pp. 629–630 below).

56 M. Dixon, Modern Land Law, 8th ed. (London 2012), 86; Law Com No 271 (see note 3 above), at [10.19].

57 Law Com No 271 (ibid.), at [10.10]; Ruoff and Roper (see note 18 above, April 2013 release), at [46.010]. Ground (c) is broadly equivalent, but relates to non-absolute titles.

58 Hence it cannot be argued, via a reductio ad absurdum of section 58, that the Register is inherently correct, and never mistaken. See Sainsbury's Supermarkets Ltd. v Olympia Homes Ltd. [2005] EWHC 1235 (Ch), [2006] 1 P. & C.R. 17, [96].

59 Indeed, the reports offer slightly conflicting viewpoints regarding the purpose of Schedule 4: on the one hand, they seem committed to the “title by registration” principle, and assert that Register correctness should not be assessed by reference to general property law (Law Com No 254 (see note 3 above), at [10.43], [8.38]–[8.40], [8.57]); on the other hand, they contain suggestions that the new alteration provisions are intended to clarify, rather than substantively change, the existing law on rectifying the Register – for which general property law was considered relevant (Law Com No 254, at [8.1]; Law Com No 271 (see note 3 above), at [2.38], [10.4]; and Knights Construction (see note 13 above), at [125]).

60 See Scottish Law Commission, Discussion Paper on Land Registration: Void and Voidable Titles (Scot Law Com No 125, 2004), at [1.11]; Scot Law Com No 222 (see note 5 above), at [13.12] ff.; and S. Gardner with E. Mackenzie, An Introduction to Land Law, 3rd ed. (Oxford 2012), 71–72.

61 R. Smith (see note 41 above), 262. See also S. Cooper (see note 4 above), 347–350. C. Harpum (see note 41 above), 203, also cautions against regarding the LRA 2002 as a mere “gloss on the unregistered system”.

62 Ruoff and Roper (see note 18 above, January 2005 release), [46.009], ff. See also Cooper (see note 4 above): Register entries made “without mandate” are mistaken.

63 I.e. a small subset of general property law. See Law Com No 254 (see note 3 above), 187; B. McFarlane et al. (2009) (see note 41 above), 534 (cf. the revised, current edition: McFarlane et al, 2nd ed. (2012), 493–508); E. Cooke, The New Law of Land Registration (Oxford 2003); E. Cooke, Land Law, 2nd ed. (Oxford 2012), 67–69. C. Harpum (see note 41 above) also seemed to tend towards this view, albeit with a degree of doubt (at footnote 68). Note that M. Dixon (see note 41 above) was non-committal in 2002, but by 2005 argued for a wider definition of “mistake”.

64 The orthodox view sees B's rights as created by registration; conversely, they would be destroyed by deregistration.

65 LRA 2002, Sched. 4, para 1. NB ‘prejudicial’ means making the title worse, rather than better: Rossetti (see note 35 above).

66 LRA 2002, Sched. 4, paras. (3), (6).

67 LRA 2002, Sched. 8, para. 1. Note that indemnity availability is restricted to rectification (as opposed to mere alteration) cases.

68 E.g. Stewart (see note 7 above). See Ruoff and Roper (see note 18 above, January 2005 release) [46.029]; R. Smith, Property Law, 7th ed. (Harlow 2012), 272; D. Fox (see note 41 above), B. McFarlane et al. (2009, see note 41 above), 534; E. Cooke, The New Law of Land Registration (Oxford 2003), 122–129; Odogwu (see note 24 above), [40], confirming that this was the original view of the Land Registry; and E. Lees (see note 4 above), 71–73.

69 Or indeed non-purchasing disponees.

70 Except to the extent that it provides B with an indemnity: p. 638 below. See further Scot Law Com No 222 (see note 5 above), at [17.28] ff.

71 E.g., the rules of adverse possession; and the protections afforded to those in actual occupation under the LRA 2002, s. 29, Sched. 3, para. 2 and Article 8 of the ECHR.

72 For the possible justifications of the monetary award, see Scot Law Com No 125 (see note 60 above), at [7.30].

73 Leiter, B., “Positivism, Formalism, Realism” (1999) 99 Colum. L. Rev. 1138.

74 F. Schauer (see note 1 above), 522–523.

75 Ibid., 521–522, 535–536; C. Sunstein, “After the Rights Revolution” (Cambridge, Mass. 1990), 133.

76 F. Schauer (ibid.), 510–511, 521; and P. Atiyah and R. Summers (see note 1 above), 2; and K. Gray and S. Gray (see note 1 above), 208.

77 Forsyth, C., “Showing the Fly the Way out of the Flybottle: the Value of Formalism and Conceptual Reasoning in Administrative Law” (2007) C.L.J. 325, 327330; and P. Atiyah and R. Summers (ibid.), 23–28.

78 See C. Harpum (see note 41 above), 203 and R. Smith, Property Law, 7th ed (Harlow 2012).

79 Some reference to external general property law is inevitable. E.g. the Act refers to, without defining, various proprietary interests, such as leases and easements – and inevitably defers to general law to provide definitions.

80 See note 7 above, at [73].

81 See http://www.justice.gov.uk/tribunals/land-registration. The office of Adjudicator to HM Land Registry was abolished on 1 July 2013, its functions being transferred to the Land Registration division of the Property Chamber, First Tier Tribunal: The Transfer of Tribunal Functions Order 2013.

82 E.g. Barclays Bank v Guy (No 1) [2008] EWCA Civ 452, at [23]; Barclays Bank v Guy (No 2) [2010] EWCA Civ 1396, at [35]; Knights Construction (see note 13 above), at [132]. NB in some cases, C is deregistered on this ground without the relevant mistake being identified, e.g. Manchester Ship (see note 13 above) and (obiter) Iqbal (see note 12 above), at [37].

83 See note 6 above.

84 Ibid., at [9] and [12]. Also Crawley (No 1) (see note 10 above), at [75]–[76]. Note Ruoff and Roper (see note 18 above, April 2012 release), at [46.029]) now endorses Ajibade, implicitly conceding that the orthodox view no longer represents the law.

85 E.g. Odogwu (see note 24 above); and Knights Construction (see note 13 above).

86 Ibid., at [56]–[57].

87 For criticism, see Knights Construction (see note 13 above), at [129].

88 Manchester Ship (see note 13 above) could be explained on this ground. See also Knights Construction (see note 13 above), at [128]–[132], where the Deputy Adjudicator explored this argument but ultimately preferred rectification to be more widely available than this explanation would permit.

89 Land Registration Rules 2003, r. 4(2).

90 The law should adopt a consistent approach to errors in each Register part: it is arbitrary to single out geographical mistakes as grounds for rectification against C (where only part of A's land had been lost), and to refuse rectification in proprietorship mistake cases (where A may have lost all of his land): Knights Construction (see note 13 above), at [129].

91 See note 82 above.

92 Ibid., at [35]. In the case, A challenged (within CPR, rule 52.17) the Court of Appeal's decision in Guy (No 1) [2008] EWCA Civ 452 to refuse A permission to appeal from the High Court's decision. A ultimately lost, on the basis that the threshold for reopening an appeal is very high, but the Court of Appeal in No 2 saw some merit in A's legal arguments against C. See also Knights Construction (see note 13 above), at [132].

93 Ibid., at [35]. See M. Dixon, Modern Land Law, 8th ed. (London 2012), 87.

94 Barclays Bank Plc v Guy (No 1) [2008] EWCA Civ 452, at [23]; also Iqbal (see note 12 above).

95 Law Com No 254 (see note 3 above), at [2.5].

96 Lloyd L.J.'s view contains other possible problems: (1) he assumes the relevant mistake is C's, whereas in most rectification cases, the mistake is the Registrar's; (2) even if the concern is with C's mistake, it is counterintuitive to require C to have knowledge or notice of the defect in B's title: surely C is less mistaken the more he knows?: Marine Trade SA v Pioneer Freight Futures Co Ltd. BVI [2009] EWHC 2656 (Comm), [2009] 2 C.L.C. 657.

97 Lloyd L.J. later pointed out that his comments were not binding precedent: Guy v Pannone (see note 22 above), at [28].

98 Odogwu (see note 24 above) (point conceded by Chief Land Registrar); Fretwell (see note 9 above) (C's registration being mistaken a “serious issue to be tried”); Pinto v Lim (see note 7 above) (C's registration considered mistaken for purposes of indemnity); Barclays Bank v Guy (No 2), (see note 82 above), at [35]; and Knights Construction (see note 13 above), at [132].

99 LRA 2002, Sched. 4, para 1; and Sched. 8, para 1.

100 E.g. Ajibade (see note 6 above); Knights Construction (see note 13 above); and Stewart (see note 7 above).

101 Ibid., at [131].

102 E.g. Fitzwilliam (see note 6 above).

103 See e.g. E. Bant, “Registration as a Defence to Unjust Enrichment: Australia and England Compared” [2011] Conv. 309.

104 [2010] EWHC 573 (Ch), [2010] 1 W.L.R. 1965; and [2011] EWCA Civ 120, [2011] 1 W.L.R. 1594.

105 LRA 2002, Sched. 6.

106 [2010] EWHC 573 (Ch), at [63].

107 N.B. Baxter has been distinguished in situations where the real owner is unidentified and the rectification claim is brought by a third party. Here, the Schedule 4 defence has protected the current registered proprietor because no public interest is served by rendering the land ownerless: Burton (see note 55 above).

108 LRA 2002, ss. 28–29, Sched. 3.

109 The right is also protectable by a ‘notice’ in the Register: section 29.

110 See note 10 above. Also Proudlove v Wood [2011] P.L.S.C.S. 206; Stewart (see note 7 above), at [37]; and Fretwell (see note 9 above), [29].

111 See E. Cooke, The New Law of Land Registration (Oxford 2003), 127; E. Cooke, “Land registration: void and voidable titles – a discussion of the Scottish Law Commission's paper” [2004] Conv. 482, 486. However, see D. Fox (see note 41 above, who, although in the large part an adherent to the orthodox view, anticipated the overriding status of the right to alter).

112 See R. Smith, 7th ed, Property Law (Harlow 2012), 278. However, possible counter-arguments exist, e.g.: that (i) the indemnity payable regarding the rectification of B's interest contains a sum representing C's interest; (ii) C is claiming under a forged disposition within Sched. 4(1)(2)(b), which deems a loss; or (iii) any change to one's registered title is prejudicial, even though the change may just give effect to pre-existing rights (a possible explanation for Rees v Peters [2011] EWCA Civ 836, [2011] 1 P. & C.R. 18).

113 LRA 2002, s. 60. Most titles have “general boundaries”: Land Registry Practice Guide 40, Supplement 3 (2012), at [6].

114 See Cherry Tree Investments v Landmain [2012] EWCA Civ 736, [2013] Ch. 305, at [29].

115 Although they overlap, “boundary” disputes essentially concern the geographical co-ordinates of land included in a title, whereas “property” disputes relate to ownership of that title: Lee v Barrey [1954] Ch 251, 261–2.

116 [2007] EWHC 1326 (Ch), [2007] 3 E.G.L.R. 44.

117 [2011] EWCA Civ 1279, [2012] P. & C.R. 4.

118 (2011) REF/2010/0982 (Adj.), at [110].

119 E.g. Fallon (see note 55 above); and Drake v Fripp [2011] EWCA Civ 1279; [2012] 1 P. & C.R. 4, [16]. Note: alteration here would not constitute “rectification” because it would not “prejudicially affect” C's title: Sched. 4, para 1(b); consequently, the Schedule 4 defence is unavailable.

120 [2013] EWHC 86 (Ch), [2013] 1 P. & C.R. 19; also Kinnear (see note 11 above). But cf. Parshall v Bryans [2013] EWCA Civ 240, [2013] 3 All E.R. 224, [94], decided under the LRA 1925.

121 (1841) 4 Beav 115, 49 ER 282.

122 The defence might not be available if Baxter is taken seriously: see note 104 above.

123 Para. [85].

124 [2002] EWCA Civ 151, [2002] Ch. 216.

125 Although not necessarily identical: it is unclear whether the fraudulent intermediary in Malory himself acquired the registered title on its route from the innocent claimant to the innocent defendant. If so, the trust could be explained as a constructive trust responding to the intermediary's unconscionable conduct: Westdeutsche (see note 49 above).

126 Ruoff and Roper (see note 18 above, April 2012 release), at [46.032.01]; and Dixon, M., “A Not so Conclusive Register?” (2013) 129 L.Q.R. 320; cf. E. Cooke, “The Register's Guarantee of Title” [2013] Conv. 85.

127 C is therefore subject to trustees' duties: Ramzan v Brookwide Ltd. [2011] EWCA Civ 985, [2012] 1 All E.R. 903; Kinnear (see note 11 above).

128 Under the rule in Saunders v Vautier. See further Knights Construction (see note 13 above).

129 Fitzwilliam (see note 6 above).

130 Westdeutsche (see note 49 above), 705.

131 Also Knights Construction (see note 13 above). Cf. Malory (see note 124 above), Ramzan (see note 127 above) and Kinnear (see note 11 above), where the trust may have responded to unconscionable conduct.

132 R. Chambers, Resulting Trusts (Oxford 1997), 21–23 and 116–118.

133 Part V.A.1.(vi).

134 Other cases may also support this view, for example: Ramzan v Agra Ltd. (2008, Birmingham County Court, unreported); and Parshall v Bryans [2012] EWHC 665 (Ch).

135 See note 55 above.

136 LRA 2002, s. 74.

137 [2011] EWCA Civ 772, [2012] 1 W.L.R. 2428.

138 Para. [21].

139 C's loans were adequately secured over the remainder of B's land.

140 See A. Goymour (see note 36 above).

141 Ibid.

143 In such a system, registration might be a necessary, but not sufficient, step in acquiring a valid legal title. See Scot Law Com No 222 (see note 5 above), at [17.33], ch. 13 and ch. 21.

144 A partial solution would be for the Registry to act as an insurer for the value of the property, rather than promising C the property in specie.

145 Scot Law Com No 222 (see note 5 above), implemented via Land Registration etc. (Scotland) Act 2012, esp. s. 86. Furthermore, in the event that C loses the land, the Registry acts as an insurer for the land's value.

* I am indebted to John Bell, Martin Dixon, Simon Gardner and Stephen Watterson and the two anonymous referees for their enormously helpful comments on earlier drafts. All errors are my own.

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