Overarching Land Law Theory

Question 1

A (Former) Law Reformer’s Perspective: Reforming the LRA 2002—Catalysts and Questions

So what is land registration for?

1. contrasting historical perspectives
2. reasons underpinning registration in England

Answer 1

The answer is to some extent subjective: we can see what a system is for by looking at who wants it.

Contrast William the conqueror who wanted land registration for information and as an instrument for power (so had the Domesday book written) and and Transfer Act 1858 in South Australia was the product of the need for settlers to be able to buy and sell land quickly and cheaply and without the inconvenience of managing, storing and producing title deeds.

Our LRA is the product of a desire to be able to simplify conveyancing.

Question 2

A (Former) Law Reformer’s Perspective: Reforming the LRA 2002—Catalysts and Questions

The balance to be struck re registration?

Answer 2

balance has to be struck between defining reality (whereby title is conferred by the Register) and responding to reality (whereby the Register can be altered in certain circumstances in response to off-Register facts and events). There is always a balance to be struck and that is why ‘title by registration’ is rhetoric rather than a legal principle; no system can claim to take precedence in all circumstances to off-Register events (e.g. Register showing A as proprietor of land becomes inaccurate when A dies)

Question 3

A (Former) Law Reformer’s Perspective: Reforming the LRA 2002—Catalysts and Questions

Why, though, look at indefeasibility when the LRA 2002 already makes provision for it in schedules 4 and 8, and when the Law Commission in its 2001 report on Land Registration for the Twenty-First Century gave thorough and scholarly consideration to the subject?[

Answer 3

1. certain things were left uncertain in the LRA 2002 (but subsequently addressed in Swift 1st Ltd)

Fundamentally, ‘mistake’ was not defined, although its meaning was expounded in the Law Commission’s 2001 report and the case law has explored it since.

It is now reasonably clear that where a transfer from X to Y is a mistake, so too is the registration of a mortgage or transfer effected (innocently and legitimately) by Y to Z. The scope of ‘mistake’ is crucial, because there can be no indemnity without a mistake which is susceptible to correction. The drafting of the Act did not close down some different ways of analysing situations where alteration is wanted. Bullet-proof certainty in statutory drafting may not always be advisable, because the law needs room to breathe. But there is sufficient uncertainty here to generate real difficulty for landowners and for Land Registry, so it needs to be solved.

2. the answers to the questions at the heart of the issue may well have changed since 2002. The Law Commission rightly highlighted the unique nature of the English version of indefeasibility, where the answer to who keeps the land depends upon who is in possession of it. There is much to be said for the convenience of that principle and for its resonance with human rights concerns (i.e. art 8). But there is apparently rather more fraud around now than there was in 2001. With frequency comes a heightened concern, and undeniable discomfort with the possibility that a purchaser, however innocent, might keep land that should not have been transferred to him rather than it being restored to the registered proprietor who should not have lost it.

Question 4

Chapter 2. The Land Registry’s Perspective: The Practical Challenges of Land Registration

What is Land registration about?

Answer 4

Land registration is about people. Of course, technically speaking, it is about estates and interests, transfers and leases, charges and incumbrances; but at its heart is the society it serves

Question 5

Chapter 4. A Broader Development Perspective: Economic and Political Drivers of Worldwide Land Registration Reform

in response to Stuart Anderson’s question: why should the state invest in administrative and legal registration facilities for the benefit of private owners?

Answer 5

1. economic theories - registration systems support economic and social developments
2. title registration systems facilitate the development of computer-enabled land information systems which link multiple data sources by reference to the parcel

Question 6

Chapter 4. A Broader Development Perspective: Economic and Political Drivers of Worldwide Land Registration Reform

1. economic theories

outline

Answer 6

Land registration projects are premised on the assumption that there is a public interest in supporting the regime of private property. One set of theories holds that private property is justified by its contribution to the material welfare of society as a whole (‘aggregate wealth’). The principal theories in this group are utilitarianism and economic theories of efficiency and wealth maximisation. The theories have both positive and normative aspects. Positively, they seek to explain actual phenomena, such as principles upon which markets operate. Normatively, they imply an onus on governments to take certain action to protect the security of property rights.

Question 7

Chapter 4. A Broader Development Perspective: Economic and Political Drivers of Worldwide Land Registration Reform

1. economic theories

Coase on effect of efficiency of markets in allocating land + effect of expensive conveyancing!

Answer 7

Coase showed that the efficiency of markets in re-allocating land and resources to those who will use them most productively can be obstructed by transaction costs. These include the cost of investigating and appraising rights or resources (‘information costs’), bargaining to acquire them (‘bargaining costs’) and enforcing the bargain (‘enforcement costs’).[12] If the transaction costs are high enough to absorb the whole of the potential co-operative surplus, there will be no scope for mutually beneficial exchange to occur.[13] In such a case, the market will not operate efficiently to shift the right or resource to a more highly-valued use. The forgone transaction represents a ‘deadweight’ loss in aggregate wealth.

Coase showed that transaction costs limit the ability of the market to achieve a wealth-maximising allocation of rights. From this positive analysis, Coase derived normative implications for the law. The law ought to facilitate private bargaining and the transferability of rights by reducing transaction costs.[15] Robert Cooter and Thomas Ulen call this the ‘normative Coase theorem’.[16] Coase said that ill-defined rights will carry higher transaction costs on transfer

Question 8

Chapter 4. A Broader Development Perspective: Economic and Political Drivers of Worldwide Land Registration Reform

1. economic theories

De Soto’s Influence on the Development Agenda

Answer 8

In his second book, published in 2000, De Soto pondered why Western capitalism had proved so difficult to replicate in the Third World.[30] He concluded that economists had overlooked the importance of security of property as the key to economic development. Western economists had taken for granted the institutions that they found in their own environment. They had failed to specify the institutional settings that were required for their economic prescriptions to work in other countries

Formalisation of titles would encourage investment and facilitate landholders to access secured credit on more favourable terms.

NB linkages are not purely theoretical, but are supported to some extent by empirical evaluation of outcomes of projects undertaken in many countries by the World Bank and other development institutions. The findings of positive economic effects are patchy, and indicate that formalisation of titles through registration is ‘no panacea’

• land registration is more likely to achieve its objects when integrated into a broader agenda of strengthening economic and governance institutions.

Question 9

Chapter 4. A Broader Development Perspective: Economic and Political Drivers of Worldwide Land Registration Reform

2. The Land Administration Link

Answer 9

development of the information economy has highlighted the potential of computer-enabled land information systems to generate rich location-based data. The cadastral parcel—spatially defined, uniquely identified, and with authoritative title data—offers an excellent reference point for combining and integrating information from layered databases. Governments, particularly in the advanced economies, are interested in harnessing the data for multiple uses in land governance for both administrative and commercial purposes.

Question 10

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

Section 58(1) of the Land Registration Act (‘LRA’) 2002 provides for the conclusiveness of the Register, in the following terms:

Answer 10

If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration

Question 11

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

Qualifications to the conclusiveness of the register

Answer 11

(1) Most obviously, the conclusive and constitutive effect of section 58(1) is subject to: (a) the Act’s schedule 4 alteration provisions (as broadly interpreted by the courts - Swift 1st Ltd) and
(2) the express proviso in section 58(2), which prevents section 58(1) applying where a ‘registration requirement remains to be met’.[3]

Generally, however, section 58 sits comfortably with a view that emphasises the peremptory character of the Register in determining matters of title in respect of registered land.

On this view, it is ‘the fact of registration and registration alone that confers title’.[4]
which ranks titles according to their date of creation—the first having priority. As with any title to land, both fees simple can be conveyed to others.

Question 12

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

1. How does conclusiveness of register stand in contrast to principles that underlie general property law?
2. KEY AIM OF THE CHAPTER

Answer 12

1. i.e. possession is the ultimate root of title.

They then explain relativity of title

Investigates broad questions as to the nature of the title which is conferred by section 58. Has the LRA 2002 regime created a unitary, absolutist concept of title, which ousts the general law doctrine of title relativity? Or does the title relativity doctrine continue to have a role within—or perhaps alongside—the Act? More fundamentally, we ask whether the idea of title relativity sits comfortably with the policy ambitions of our land registration system, and therefore whether title relativity ought to have any continuing role.

Question 13

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

The Perception that Relativity of Title is Fading under the LRA 2002

1. what arguments have been put re shift away from relativity of title?
2. where do the seeds for this stem from?
3. Any support in the case law?
4. scholars re fading of relativity of title doctrine
   (i) Cooke
   (ii) Gray and Gray

Answer 13

Arguments have been put forward in recent property law scholarship to suggest that:

(a) the LRA 2002 represents a shift away from title relativity towards a system of absolute ownership; and/or
(b) that such a shift is, or would be, desirable.
2. Seeds for this idea were sown by the Law Commission’s statement that the LRA 2002 was to be a system where ‘[t]he basis of title should… be the register’ (emphasis added)[5]—which hints that title to land is singular and absolute, and derives exclusively from the Register.
3. Indeed this theme was picked up by Ouseley J in Best v Chief Land Registrar [2014], where he stated that ‘the register and not possession is the root of title to registered land’.
4. Scholars have developed this theme, expressing doubts about the long-term survival of title relativity.
(i) ‘relativity of title … used to be an important concept, but is no longer’ (E Cooke,)
(ii) ‘[I]t was inevitable that the impact of relativity of title, whilst not eliminated from the law of registered land, should be greatly curtailed’ (K Gray and SF Gray

Question 14

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

The Perception that Relativity of Title is Fading under the LRA 2002

The gist of the argument that title relativity is fading:

Answer 14

(i) schedule 6 of the LRA 2002 institutes a regime whereby squatters may apply to acquire the registered title; (Sch. 6 para 1)
(ii) if successful, the squatter’s own fee simple is extinguished, and he becomes the registered proprietor; (Sch. 6 para 9) and therefore
(iii) it is no longer possible for a squatter’s possessory common law fee simple to mature into a right resembling ownership, conferring rights good against the world—and for this reason it makes no sense to continue to regard that possessory title as a significant interest.

‘that adverse possession confers an independent freehold title from the moment at which possession begins’, albeit a title that is rendered ‘ghostly’ by its significant vulnerability to the superior registered title: B McFarlane, N Hopkins and S Nield, Land Law: Text, Cases and Materials

Question 15

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

The Perception that Relativity of Title is Fading under the LRA 2002

What does Nair say re adverse possession?

Answer 15

Aruna Nair treats the title of an adverse possessor as ‘highly watered-down’, but one which nevertheless ‘exists on a continuum with the rules that generate … more powerful rights and cannot be understood except in the context of a system in which possession generates rights’:

Question 16

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

The Perception that Relativity of Title is Fading under the LRA 2002

Simon Gardner (Intro to land law):

Answer 16

Simon Gardner has observed that the LRA 2002’s adverse possession reforms ‘involved eradicating … the idea that possession in itself gives someone a title to the land’

Question 17

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

The Perception that Relativity of Title is Fading under the LRA 2002

The Grays’ view

1. ‘quaintly medieval…’
2. Grays’ broader argument?
3. what is English law moving towards?
4. can title be detached from the estate?

Answer 17

‘quaintly medieval notion that unchallenged possession generates a presumptive form of estate ownership’ has yielded to the reality of a ‘state-regulated bureaucratic fact’.

The Grays’ view also includes the broader argument that, within the LRA 2002, concepts of title and registered estates are becoming fused, leaving no room for relative titles—under the Act, ‘“title” is no more and no less than the Register entry which records proprietorship of the relevant estate’.

As such, they suggest that English law is moving towards a concept of absolute title to land that itself approaches Roman dominium:

No longer can ‘title’ be detached from the ‘estate’ … The overall effect is to weld concepts of ‘title’, ‘estate’ and ‘proprietor’ into a form of statutory ownership of land which begins to resemble the civilian model of proprietorship … A new in rem quality has been conferred on estate proprietorship (and particularly on ownership of the fee simple estate). The titles maintained by Land Registry are beginning to evince a more ‘absolute’ quality than they have ever previously enjoyed, thereby demonstrating, in effect, an inexorable drift towards the hitherto alien continental concept of dominium

Question 18

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

Challenging the Perception that Title Relativity is Fading

1. working on the assumption that s.58 does as it says and confers a title to a ‘legal estate’ in land, we argue that the doctrine of relativity of title nonetheless remains relevant where a title to land is registered.

Answer 18

Nothing in the LRA 2002 expressly ousts the relativity doctrine and, indeed, several provisions go further and assume—more or less explicitly—the presence of relative titles in the context of registered land.

The existence of a registered title does not necessarily preclude the existence of other, relatively inferior or superior, titles to or interests over that same piece of land. As such, in certain circumstances, whilst the registered title to an estate confers a title to that estate, other lesser titles may exist in a relative ‘underworld’, below the surface of registered titles; in other circumstances, the converse may arise—the registered title might itself exist in a relative ‘underworld’, being inferior to other relatively superior titles.

Question 19

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

Challenging the Perception that Title Relativity is Fading

2. is it appropriate or desirable, as a matter of policy, for title relativity—an inherently common law doctrine which predates notions of title registration—to have this kind of continuing role in a registration regime?
   (i) where title relativity is compatible with LRA’s fundamental ambitions?
   (ii) other contexts where title relativity may disrupt

Answer 19

The question as to the continuing desirability of recognising title relativity necessarily taps into a broader issue that pervades land registration scholarship. This concerns the extent to which the statutory registration regime operates as a closed, autonomous and self-sufficient system, and/or whether external general property law rules (which pertain to unregistered land) should continue to play a part in determining rights relating to registered land. Our conclusions on title relativity are context-specific.

(i) On the one hand, in certain contexts, title relativity is consistent with the LRA 2002’s fundamental ambitions—offering certainty and stability to those who deal with registered land—and its continuing existence need not be understood as undermining those underlying principles. Indeed, we go further and argue that the subsistence of relativity of title in such circumstances is important and desirable.The title relativity doctrine has useful explanatory force—it provides a structured and coherent set of rules with which to respond to cases, involving registered titles, that would otherwise be difficult to decide or explain. To this extent, the LRA 2002, rather than imposing a radically different, self-contained system of rules for registered land, seems to tap into and/or work alongside the traditional general property law principle of title relativity. Thus, it seems that there might be greater conceptual unity between the rules governing titles to unregistered and registered land than has hitherto been acknowledged.
(ii) On the other hand, we must not be blinded by the potential compatibility, in some contexts, of the LRA 2002 regime with title relativity. There are some other important contexts in which the relativity doctrine may disrupt—and even wholly undermine—the fundamental policy ambitions of the LRA 2002 registration regime. Going forwards, it is crucial to identify those situations where the title relativity doctrine would make unwanted intrusions, and that measures are put in place to guard against this happening.

Question 20

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

example of relativity of title under the LRA 2002

1. The LRA 2002’s Treatment of Bankruptcy of the Registered Proprietor

Answer 20

The LRA 2002 and the Insolvency Act 1986, which together govern a registered proprietor’s bankruptcy, provide that as soon as a trustee in bankruptcy is appointed, that trustee acquires ‘the bankrupt’s estate’[26] (labelled a ‘title’ in the LRA 2002)[27]—eg, the bankrupt’s freehold. This is so notwithstanding that the bankrupt remains the registered proprietor unless and until the trustee in bankruptcy applies to have the Register altered.[28] As such, prior to the Register being altered, there appear to be two titles to the land: (a) the registered title belonging to the bankrupt, which he inevitably retains by virtue of his remaining on the Register;[29] and (b) the trustee in bankruptcy’s unregistered title, conferred by the Insolvency Act.

Although it may initially appear puzzling that two equal and inconsistent freehold estates may co-exist over the same land, the title relativity doctrine offers a straightforward explanation: both freeholds subsist, but one is relatively superior to the other. Here, it is implicit in the legislation that, as between the bankrupt and his trustee in bankruptcy, the latter has the better title.[30]

Question 21

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

example of relativity of title under the LRA 2002

2. Squatters

Answer 21

According to the orthodox modern view of the common law title relativity doctrine, a squatter who adversely possesses against an unregistered estate acquires a relative original common law fee simple, at the inception of his adversely taking possession of the land—an understanding which is consistent with Views 1 and 3 of title relativity.[31] The argument here is that, notwithstanding certain judicial suggestions to the contrary,[32] this seems to remain the case where the squatter goes into adverse possession against a registered superior estate. Nothing in the LRA 2002 expressly alters the legal status of a squatter on going into possession; indeed, certain key provisions actually recognise the squatter’s (necessarily inferior) ‘title’.

Express acknowledgements of the squatter’s relative (and, by implication, inferior) estate are found in schedule 6 of the LRA 2002, which governs adverse possession of registered land. Paragraph 9(1), in particular, confirms that when a squatter successfully applies for registration under schedule 6 after accrual of the relevant period of adverse possession, ‘the title by virtue of adverse possession which he had at the time of the application is extinguished’ (emphasis added). This recognises that, during the period when the squatter is a mere (unregistered) adverse possessor, he nonetheless has a ‘title’ which exists concurrently with, and is necessarily inferior to, the registered proprietor’s superior registered title. Similarly, where a subsequent squatter, S2, takes a transfer from a previous squatter, S1—prior to either S1 or S2 being registered as proprietor via schedule 6—the transferee squatter, S2, is described by the schedule 6, paragraph 11(2)(a) of the Act as a ‘successor in title’ (emphasis added).

One such ambivalent provision is schedule 6, paragraph 5(4), which relates to adverse possession of land on boundaries. To rely on this provision, adjacent land must ‘belong to’ the claimant squatter, and said squatter must reasonably believe that the disputed boundary land ‘belong[ed] to’ him. What does ‘belonging to’ mean in this context? The answer seems to depend on whether title relativity survives the LRA 2002’s registration regime, which is not answered by the provision itself. On a non-relativist view (which rejects the continuing relevance of title relativity), the legislation might require the claimant squatter to be the paramount ‘owner’ of the neighbouring estate—in effect meaning that the claimant squatter must be the registered proprietor, if the land is registered; or the superior fee simple owner, if the adjacent land is currently unregistered. In contrast, on a relativist view, it might be sufficient for the claimant squatter to be in adverse possession of that neighbouring estate, such that paragraph 5(4) can operate where merely a relatively inferior fee simple ‘belong[s] to him’. Early signs in the case law indicate a preference for the latter interpretation, thereby supporting the continuing relevance of title relativity

Question 22

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

Possible counterargument against relativity of title = functional view of LRA 2002

• response

Answer 22

Whilst schedule 6 does not technically oust title relativity from the land registration regime, it is arguable that the schedule’s broad functional effect—in greatly reducing the possibility that a squatter will ultimately acquire an indefeasible title—might, via a side-blow, result in the practical demise of the notion of title relativity.

The weakening of the squatter’s position follows plainly from the LRA 2002’s disapplication of the Limitation Act 1980’s provisions[37]—which formerly applied to both unregistered and registered land; and the simultaneous creation of the new schedule 6 application procedure for squatters.[38] Only in certain narrow circumstances, set out in schedule 6, will a squatter succeed in defeating the former registered proprietor’s rights, and become the registered proprietor.

• response: important reasons of doctrine and policy why adverse possession should continue to be regarded as generating an independent title, even if that title is unlikely ever to become indefeasible. A first point is that human rights concerns relating to Article 1 of the First Protocol to the European Convention on Human Rights, which protects the enjoyment of one’s possessions, might materialise if the LRA 2002 were interpreted—without explicit justification—to deny the acquisitive effects of a squatter going into adverse possession.

Question 23

Chapter 6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002

Conclusion

Answer 23

1. Relativity of title is not inconsistent with the LRA 2002. While the position is not completely unequivocal, in general, and across a broad range of situations, the provisions of the Act provide both express and implied support for the possibility that title relativity continues to subsist in the context of registered land. Prima facie, then, the existence of a registered title does not necessarily preclude the existence of other, relatively inferior/superior, titles to or interests over that same piece of land.
2. In fact, the point can be put more strongly. The continued recognition of principles of title relativity in the registered land context brings substantial advantages to English land law, and it is desirable that these principles should be acknowledged and maintained—at least to the extent that they are consistent with the registered land regime. In many important situations, the title relativity doctrine continues to provide a convincing and structured basis on which to approach matters that would otherwise would be difficult to resolve or reconcile. Sometimes this will be because a case presents a conceptual difficultly that is quickly and coherently dissolved by an application of relativity of title principles—as where a squatter seeks registration of a possessory title under section 9,[107] or where section 11 must be applied to ascertain whether a first-registered proprietor’s title is burdened by a previously completed period of adverse possession against the unregistered title.[108] At other times, as in a case like Gold Harp, the title relativity doctrine is worth serious consideration because the outcome of a case would necessarily be different in a world without title relativity.[109]

To the extent that relativity of title retains such a useful and persuasive function in dispute resolution, it seems desirable to regard the doctrine as subsisting in the context of registered land, and correlatively disadvantageous to regard it as fading or withered. This is so notwithstanding that the paradigm case of a squatter acquiring an indefeasible title to 93a registered estate is unlikely to materialise under the provisions of LRA 2002.[110] Indeed, it is arguable that a skewed impression of the declining significance of this paradigm has exerted too heavy an influence on commentators, and has led them to conclude, too swiftly, that title relativity is something of the past. As we have argued, it is important not to equate the existence of relative titles with the likelihood of a squatter’s acquisition of an indefeasible title, and it would be an overreaction to allow the attenuation of the significance of adverse possession by schedule 6 of the LRA 2002 to dictate the broader status and availability of arguments about title relativity.

It follows that we must treat with caution the view that principles of land registration in general, and the LRA 2002 in particular, have committed English law to a Roman-style concept of dominium, or absolute ownership, of land. Nothing about the existing law inexorably entails this view. Instead, we would do better to replace broad assertions of the dominance of registration principles in title matters with careful contextual analysis of the possible impact of title relativity reasoning. This does not mean that all title disputes must be informed or governed by title relativity principles—sometimes this will not be appropriate or desirable, even when superficially attractive, as our discussion of Parshall v Hackney has shown.[111] However, it is important that courts and commentators at least consider the possible impact of title relativity reasoning in undertaking their analysis. This more than anything serves to confirm its standing as a cardinal principle of English land law.

In short, the LRA 2002 does not require us to accept that the Register is the basis of title. It is a basis of title—we can even fairly say of a particularly strong title—but it is not necessarily the only basis.

Question 24

Chapter 9. Assessing Rectification and Indemnity: After Gold Harp and Swift 1st
Roger Smith

The Background: Statutory Provisions

Answer 24

Schedule 4 of the LRA 2002 regulates rectification. The schedule provides for ‘alteration’ in a range of cases.

Most straightforward is bringing the Register up to date and reflecting existing legal rights.

Of greater interest is ‘rectification’—which is defined as an alteration which ‘involves the correction of a mistake’ and ‘prejudicially affects the title of a registered proprietor’ (LRA 2002, Sch. 4,para1). It is the latter element that distinguishes rectification from other alterations, but the scope of the concept of ‘mistake’ is crucial in determining when rectification is available.

The protection of proprietors in possession against rectification is also of great importance: rectification is not allowed unless: (a) there is fraud or lack of proper care, or (b) it would be unjust not to rectify (LRA 2002, sch 4, paras 3(2), 6(2))

In summary, the cases show that a purchaser who buys land in the normal way has little to fear (Walker v Burton [2013] i.e. whether lack of care; Hounslow LBC v Hare (1990) i.e. whether unjust not to rectify).

The great majority of registered proprietors will be proprietors ‘in possession’, as the LRA 2002 allows landlords, mortgagors, licensors and trustees to be in possession where the corresponding party (tenant, mortgagee, licensee, beneficiary) possesses.[9] There will be no registered proprietor ‘in possession’ if the land is completely vacant or is occupied by the person claiming rectification. A registered chargee also cannot claim that protected status—it is limited to the proprietor of a registered estate, which is defined to exclude a registered charge.[10] Absent possession, rectification will be ordered unless there are ‘exceptional circumstances’ (LRA 2002, sch 4, paras 3(3), 5(3)).