A fitting substitute to the Solicitor to Land Registry

The Land Registration Act 2002 (LRA) brought in its wake a multitude of changes and reforms to repeal and replace the Land Registration Act 1925 (1925 Act). The 1925 Act had not kept pace with the changing property environment and deserved sweeping changes to make Land Law commensurate with modern living. The Adjudicator to HM Land Registry (Adjudicator) was introduced by LRA to make dispute resolution easier and cheaper. As with all other transformation in land registration laws, the primary aim of the Adjudicator was to simplify the dispute resolution process and to make it more accessible for the general public.

The existing system

Under the 1925 Act in case of disputes arising with a registration, the Chief Land Registrar (CLR) was obliged to hold a hearing to determine the issues in dispute if the parties concerned failed to reach an agreement. Alternatively he could direct one of the parties to issue proceedings under R 299 (3) of the Land Registration Rules 1925. The jurisdiction of the CLR was delegated to the Solicitor to HMLR with a right of appeal to the Chancery Division of the High Court. On a pragmatic level, a majority of cases were never resolved within the system and had to be referred to the High Court incurring heavy expenses for the parties concerned.
The existing system failed to conform to the provisions of Article 6 of the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 denying the right to a fair trial by an independent and impartial tribunal.

Reformation

LRA created a judicial post under S107 and the Adjudicator to HMLR (Practice and Procedure) Rules 2002 separating the judicial functions of the solicitor from his other legal and administrative jobs. This was an independent and impartial position and came to be referred to as the Adjudicator to H M Land Registry. The Adjudicator operates subject to the supervision of the Council on Tribunals in accordance with Schedule 9, Paragraph 8 of LRA. Although an independent entity, the Land Registry (LR) reimburses the cost of running the office of the Adjudicator.

Main Functions

In simple terms the Adjudicator is an independent judge appointed for overseeing disputed applications at the Land Registry and therefore deals with registered land. However, his remit is not limited to just that. S108 of LRA divides his jurisdiction into three parts: a) Dealing with references from the Land Registry for disputed applications mainly in regard to boundary disputes; easements and restrictive covenants; beneficial ownership of land and adverse possession claims b) Pursuant to S108(2) the A may on application make any order that a High Court normally makes for rectification or setting aside of a document. The document should either effect a qualifying disposition of a registered estate or charge or a contract to make that disposition or effects a transfer of an interest that has been registered as a Notice on the register. Qualifying dispositions include registrable ones as well as those that generate a Notice on the register such as transfer of a registered land, grant of a lease or a deed that creates a restrictive covenant or contract for such dispositions; c) Hearing appeals under paragraph 4, Schedule 5 of LRA made by property professionals such as solicitors or licensed conveyancers aggrieved by a decision to grant or terminate a Network Access Agreement (NAA). However, the last one will be implemented in full force only after e-conveyancing is fully up and running as this is an integral part of electronic conveyancing.

How does the Adjudicator play his role?

The Adjudicator determines applications made by the LR or made by the parties to a dispute and makes substantive orders with written reasons. Where the application is determined the Adjudicator may order that the CLR gives effect to or cancels an original application the subject of dispute or may ask for a specific entry to be made on the register. The Adjudicator also has within his powers the right to order than an application by a specific person be rejected outright by the LR or to make provisions for a conditional acceptance. The Adjudicator can also order costs during or at the conclusion of a case to be paid by one party to the other (the affected one). The Adjudicator can make wasted costs orders for a legal representative to pay the whole or part of his client’s costs or client’s costs liabilities to another party.

Advantages

Adjudicators are well entrenched in property law and hence are well grounded in the law and subject matter than court judges. The lack of interlocutory hearings and absence of court fees help to keep costs down.

Conclusion

At the time of its inception it was envisaged that the Adjudicator would be a part time role. But the obvious success of the process has stipulated the need for it to be a full time role with assistance provided by 32 deputy adjudicators three of whom are full time. Recent cases such as the Court of Appeal one of Wilkinson V Frederick Farmer (2010) are further encouraging the role of the Adjudicator.

The Adjudicator’s role is limited for the following: a) He has no power to strike out or give a summary judgment b) no jurisdiction to grant remedies beyond accepting or cancelling an application made. That is a stumbling block for those who require injunctions or order for sale- they have to rely on the traditional court system. This may not change as an increase the Adjudicator’s ambit may threaten the courts and the judges!

Mangala Murali
Tel: 07890 936770
LinkedIn: www.linkedin.com/pub/mangala-murali/16/b38/22b