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The Earl of Caithness: I am extremely grateful to the noble Baroness for that full reply. Perhaps I may be a little pernickety and take up on one point: she might think that I belong to an institute--I probably deserve to do so--but in fact it is an institution. I am also grateful for the support of my noble friend Lady
The Minister mentioned that the legal framework is already contained in the Bill. I am reassured by that. However, she went on to say that if it is not, there would be different legislation. Does that legislation already exist or will further primary legislation be required? Alternatively, could this be achieved under the secondary legislation provisions of another Act of Parliament?
I should like to take this opportunity to apologise for being unable to attend the demonstration. I wrote to the noble Baroness to explain why I could not do so. It is clear that I missed an important meeting which would have helped me with this amendment.
The Duke of Montrose: Before we agree to the inclusion of Clause 94, I should like to ask the Minister for clarification. This clause deals with the storage of documents. I should like to know whether what might be contained in the rules will be adequate and whether a further amendment should be considered at a later stage.
First, I apologise to Members of the Committee for the fact that, owing to other duties, I was not able to attend the Second Reading debate. Furthermore, I should declare my interest as a landowner with an interest in land registration.
I shall paraphrase Section 8 of the Electronic Communications Act 2000: "The Minister is not to authorise electronic communication or electronic storage unless he considers that . . . the extent to which records will be available . . . will be no less satisfactory in cases where use is made of electronic communications or electronic storage than in other cases". This seems to suppose that electronic recording could be the only form of recording under the provisions of that Act.
So far as I understand the Bill before the Committee, it does not depend on the provisions of the Electronic Communications Act, although it runs on fairly similar lines to it. Furthermore, it does not require that electronic recording should be no less satisfactory than in other cases, as stated in Section 8 of the Act. In the question of land title, a great deal of satisfaction comes from being able to go back to the deed in 50 or 100 years' time.
I was grateful to be able to attend the demonstration which took place on the committee corridor. From what I saw, in the initial stages a paper document will be produced by the Land Registry. However, so far as I can see, there is no requirement for it to do so.
Baroness Scotland of Asthal: I say straightaway that I understand the noble Duke's concern. In particular for those of us who have grown up with paper, there is something reassuring about holding it in one's hand. I can sympathise and empathise with that concern. However, the whole purpose underlying electronic transmission is that all the records will be held electronically. Back-up systems will also be available so that we shall not have to rely on only one. We all know how dangerous that can be. That is particularly the case for any noble Lord who knows the feelings of joy when one's PC crashes. I can certainly reassure the noble Duke that the intention is that any system put in place will have proper back-up.
Although a paper record will not be kept, the computers will still be capable of creating paper. Anyone will be able to request a paper copy of their entry in the register. Indeed, for only a very few pounds anyone can request such a record. We have taken on board any concerns that might be felt in this area.
The Bill stands on all fours and its provisions are free of the Electronic Communications Act 2000 mentioned by the noble Duke, although it is right to say that this legislation is better informed by virtue of the fact that an Act similar in nature had already been passed to which reference could be made. For registered conveyancing, ultimately it will be the register and not the original deeds that will matter. The register already is almost wholly electronic.
I should like to take this opportunity to applaud the Land Registry for having achieved a great feat. It has converted many of those beautiful but dusty and deteriorating documents into electronic form. We now have a safe record of them. I am sure that many historical libraries will be happy to have other records in due course. Guidance will be made available from the Public Record Office. We respectfully hope and suggest that a paper back-up will not be necessary. However, I understand that for those of us born before 2001, we shall probably bemoan its passing.
The Deputy Chairman of Committees: I have already called Clause 95 stand part and the Committee agreed that it was content. I have also put the Question whether Clause 96 shall stand part and the Committee agreed that it was content. We have now reached Schedule 6 and Amendment No. 89 tabled by the noble Lord, Lord Goodhart.
The noble Lord said: This amendment seeks to leave out paragraph 5(4) to Schedule 6. This sub-paragraph confers a right to registration on the traditional basis of adverse possession where a boundary on the ground does not coincide with a boundary on the register. The report from the Law Commission refers specifically to this. It may happen in the course of the development of a new estate. Frequently the developer of the estate may draw up a plan which is divided into neat plots. The plan is then used as the basis for registration, but the boundaries between the different houses on the estate do not coincide with the boundaries as shown on the plan. I understand the thinking behind paragraph 5(4), but I do not agree with it.
The reason I do not agree with it is that if the boundary as shown on the register is paramount, it reduces the chances of boundary disputes arising. Speaking from personal experience, I can remember a case in which I had a marginal involvement which appalled me. It concerned a dispute over a boundary which had arisen in exactly the circumstances where the boundaries on the plan did not coincide with the boundaries on the ground. There was therefore a claim based on adverse possession.
The dispute involved, I think, some 10 days of hearings in a county court, spread over a period of 18 months. This was followed by an application for leave to appeal, which was rejected by one judge at the Court of Appeal. But there was then a re-application to a three judge court, which gave leave. That appeal was subsequently successful.
There were three parties involved, the two landowners and the developer, who was brought into the case. At the stage at which I was involved--which was after the county court decision but before leave to appeal had been given--each party had already incurred costs of approximately £40,000 over a strip of land worth at the most a few hundred pounds. If the landowners in that case had been told that the boundary on the register was decisive, there would have been no litigation.
Of course there may be cases where, for example, a garage has been built on land which one owner believes to be his but which was in fact on the wrong side of the boundary as shown on the plan. In such a case, it would obviously be undesirable that the boundary should be changed and that a garage--and possibly, in some circumstances, even a building--should have to be knocked down at great cost because it had been built on the wrong side of the boundary. But that particular problem is covered already by sub-paragraph 5(2) on the ground that it would be unconscionable for one owner to claim land from his neighbour where the neighbour had spent a substantial sum in the belief that he owned the land, and where no objection was made at the time the building was going on.
Boundary disputes are the worst kinds of litigation. It is always difficult to find clear evidence and it leaves neighbours in a state of permanent hatred and warfare. I believe that the elimination of sub-paragraph 5(4) would make boundary disputes significantly less likely because there would be less opportunity to challenge the plain boundary shown on the plan. I beg to move.
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