Subrogation, Priority Disputes and Rectification: Mapping a Route Through the Thicket

Abstract

This article examines the operation of subrogation within the registered title system established by the Land Registration Act 2002 (‘LRA 2002’), focusing on the concept of subrogation to another’s extinguished rights. Its working premise is that two guiding principles should shape the law’s development in this area. Such subrogation entitlements should arise and operate within the LRA 2002’s registered title system in a manner which is consistent with how they arise and operate more generally, outside the LRA 2002 setting. As importantly, they should also arise and operate in a manner which is compatible with, and does not undermine, the LRA 2002’s framework and its underpinning policies. Although neither the courts nor the Land Registry have necessarily infringed either principle, there is a real risk that they may do so, if some troublesome lines of analysis are given unwarranted credence. This article seeks to chart a course through the thicket that can avoid such pitfalls.