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Lord Bassam of Brighton moved Amendment No. 91:
- Page 56, line 4, after "apply" insert "to the registrar"
The noble Lord said: Amendments Nos. 91 and 92 arise from a concern raised by the noble Lord, Lord Goodhart, in Committee. The concern was that in relation to applications to be made under Clause 60, and one or two other provisions in the Bill, it was not entirely clear that the applications were to be made to the registrar.
The main reason for the concern arose from the effect of Clause 73(7). Under that subsection, only objections to applications made to the registrar can be heard by the adjudicator.
In the light of the debate, we have looked again carefully at the various provisions, and I am pleased to bring forward amendments which I hope make it
abundantly clear how applications should be made and what is to happen in the event of a dispute. I beg to move.On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendments Nos. 92 and 93:
- Page 56, line 7, after "apply" insert "to the registrar"
- Page 57, line 5, after "unconscionable" insert "because of an equity by estoppel"
On Question, amendments agreed to.
Lord Thomas of Gresford moved Amendment No. 95:
- Page 59, line 21, leave out paragraph 12.
The noble Lord said: My Lords, my ears pricked up when I heard the Minister say that this is not a charter for more lawyers to earn more money. I note the attempt to streamline and simplify conveyancing. It takes me back to my conveyancing days in the villages of Ruabon and Rhosllanerchrugog, where my dying hand was certainly placed upon the conveyancing of houses in the neighbourhood. The villagers there would fully understand the modern expressions used in the Bill: "incorporeal hereditaments", "franchises" and "profits a prendre in gross"--they talk about nothing else! This is the new modernising language of the Bill.
In the absence of the noble Lord, Lord Goodhart--to whom many tributes have been paid and whose previous suggestions have been accepted by the Government--perhaps I may refer to his Amendment No. 95. The noble Lord raised the necessity of having paragraph 12 in Schedule 6 to the Bill. The point is this: why should time not commence to run for the purposes of adverse possession simply because an estate is subject to a trust? Why should time cease to run if in the course of that time the property becomes subject to a trust?
The trustee is the proprietor for the purposes of paragraphs 2 and 3 of Schedule 6, and thus he or she has every power under these provisions to take action against a squatter, against a person who is seeking to rely on adverse possession against the estate. If he is under a disability--a matter discussed in Committee--the provisions of paragraph 8 of Schedule 6 apply and time will not run against a trustee while he is under that disability. This is an improvement on the existing law that the trustee becomes the proprietor.
It should be entirely irrelevant whether a beneficiary has an interest in possession in the estate. The whole thrust of property legislation over the past 100 years has been to keep equitable interests away from the investigation of title. There can be nothing more frustrating than to have to look into the provisions of trusts under the Settled Land Act--which I am old enough to remember doing in my youth--and to investigate how equitable interests can apply.
Under paragraph 12 of Schedule 6 the practical effect must be that the registrar must make inquiry of every applicant who is relying on adverse possession to
ask whether there are any interests under the trust that are not in possession during the period for which he is claiming. I can envisage that question having to be on every form that is sent to the applicant in those circumstances.Furthermore, if there were proceedings for possession of the estate, the defence of a person to an action for possession under Clause 97(1) would involve an investigation by the court into periods during which the beneficial interests in the trust were or were not in possession. In other words, far from going for the legal title to the land and investigating that--considering who is the proprietor and what is the position of the trustee--the beneficiaries and their position over a period of time would have to be investigated.
Just as the Minister hoped that these provisions for adverse possession would prevent lengthy court cases, the inclusion of paragraph 12 in Schedule 6 could indeed result in conflict and in legal costs. It could indeed make the Bill a charter for more lawyers to earn more money. Although I applaud that in one sense, I am sure that that is not the Government's policy. I beg to move.
Baroness Scotland of Asthal: My Lords, the noble Lord has prompted a helpful discussion on how the Bill's new and radical approach to the law of adverse possession will work. As a fellow lawyer, I welcome him to this particular fray. There obviously cannot be too many of us involved in this debate.
I am considerably tempted by an amendment that would enable a definitive answer as to whether or not a squatter would be entitled to absolute possession by determining a claim against the current beneficiary and trustees rather than against the remainder man.
However, we believe that the Bill as it stands gives the fairer answer. The Bill introduces a new principle; namely, that within a system of registered land it should be the register which determines ownership, not occupation. It should therefore be much more difficult when the Bill is in operation than it has been in the past for a squatter to obtain good title to a property--that is, except where the defences set out in the schedule apply. A squatter will be successful only against a registered proprietor who cannot be bothered to respond to the registrar's notices and take sufficient action to recover possession.
One of the Bill's aims is to make sure that land that is being neglected remains in economic use. It is a sensible derogation from the general principle that registration determines ownership that an owner who is so little concerned with the land as to fail persistently to take the simple steps required to secure possession should yield to a squatter who will.
Matters are inevitably more complicated when land is held in trust and where the ultimate beneficiary of the trust has not yet taken possession. To put it briefly, the difference between us is that the noble Lord believes that the general law of trusteeship provides adequate protection for the interests of the ultimate beneficiary if the trustees and the current beneficiary
do not take adequate action to retain the registered interest if there is a claim for adverse possession. We, however, think that more is needed. Certainly we do not dispute that the general law would give the ultimate beneficiary recourse against a trustee who had been negligent, but establishing that right would almost certainly require litigation. If the claim was unsuccessful as the title to the land had now passed to the squatter, the ultimate beneficiary would be exceedingly unlikely to be able to recover the land. Money rather than land would generally be a second best and it may be a poor second best. In view of what I have said I invite the noble Lord to withdraw the amendment.
Lord Thomas of Gresford: My Lords, there are two points on which we fully support the Government. First, we believe that land should be used economically and, therefore, if a title is to be established by adverse possession it should not have put in its way the technicalities of trust law as the beneficiaries have an adequate remedy against the trustee if he fails in his duty. We also believe, contrary to the submissions--if I may use that word--that were made on the previous amendment, that it is a good idea for registration to be an effective defence against adverse possession and that there should be a difference between registered and unregistered land. As the noble Baroness has said, that would encourage people to register land. I ask the Government to reconsider this issue before Third Reading. If the noble Baroness is prepared to do that, as I hope that she will, I shall withdraw the amendment.
Baroness Scotland of Asthal: My Lords, I indicated earlier that I should be happy to meet any noble Lord to discuss issues still outstanding before Third Reading. However, the matter has been given extensive consideration. It was first stimulated by the extensive intervention of the noble Lord, Lord Goodhart, in Committee. I tried unsuccessfully to touch the heart of the noble Lord, Lord Goodhart, with the plight of the poor remainder man, the orphan thrown out by the squatter who has taken injudicious occupation of the land to no effect. I am happy to consider the matter further but the noble Lord should not be too optimistic in that regard.
Lord Thomas of Gresford: My Lords, if the flint-hearted noble Lord, Lord Goodhart, can prevail upon the tender hearted noble Baroness to reconsider the matter that is enough for me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
Lord Bassam of Brighton moved Amendment No. 96:
- Page 36, line 28, after "section" insert "and may do so".
The noble Lord said: My Lords, Clause 100 deals with the preparation and publication of the annual report on the business of the Land Registry. Your
Lordships will recall that we discussed in Committee whether the English used conveyed as naturally as it might do the intended sense.The amendment makes it clear that there is an absolute obligation on the registrar to publish the annual report and, as a separate issue, that he has the discretion to decide how that publication should be done. This would enable the registrar, as now, to publish hard copies of the report and to place it on the website, or to use some alternative method of publication that might become available in the future.
I believe that the English in the clause is now as clear as it can be and I hope that noble Lords will accept the amendment. I beg to move.
On Question, amendment agreed to.
Clause 108 [Functions in relation to disputes]:
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