The Hollow Promise: 'Guarantee of Title' in Registered Land

Abstract

The ‘guarantee of title’ obtained upon the registration of an estate in land is an oft-cited yet elusive concept. The term has become ubiquitous, yet with no unanimity as to its meaning. It is often recognised as a fundamental principle of the land registration system, yet the actual meaning of the ‘guarantee’, what it protects and to whom it extends remains uncertain. This thesis provides a comprehensive and systemic account of the concept of the ‘guarantee’, exploring whether the assurances made by the Land Registration Act 2002 and the legitimate expectations of users of the Register correspond to the reality for registered proprietors. As the ‘guarantee’ is not mentioned in the LRA 2002, this thesis explores the commentary of His Majesty’s Land Registry, the Law Commission, academic publications and legal cases to identify the intended effect and ambit of the purported ‘guarantee’. This thesis evaluates the features of registration deemed relevant to the ‘guarantee’ concept in this external commentary to evaluate the nature of protection afforded to registered proprietors in the event of a title or priority conflict in registered land. This thesis demonstrates that there is little to be gained by attempting to deliver on the promise of a ‘guaranteed title’. Describing titles as ‘guaranteed’ tells us nothing useful about the effect of registration, the actual rights of registered proprietors, nor the appropriate response to conflicts in registered land. It is therefore preferable that the language of the ‘guarantee’ is rejected, particularly when it is difficult to see how anything can sensibly be described as ‘guaranteed’ under the LRA 2002. Further, this thesis exposes issues with the present definition of a ‘mistake’ on the Register and the breadth of the state indemnity scheme, both of which rely on the concept of the Registrar’s purported hypothetical conduct and the troubling general law distinction between void and voidable dispositions. Ultimately, it is proposed that a change of language and careful legislation reform is required.