 I couldn't hear from everyone and thank you all for joining us. Today we have the privilege of hosting 4 very special panellists, or a special commission on the Law Commission's 28th Reform or Reform Delagraith's discussion Act 2002. Before we begin we'd like to expand our heated thanks to our speaker series sponsor, The Chance. Good chance of making our one walk back in the chamber's global top 30, yw'r llunio ar y cyfrifiad neu ymgynod ar y cyfrifiad, yr ystod yn ymgyrch, ychydig, a'r ysgwr yn ymgyrch, a'r ysgwr yn ymgyrch, ymgyrch, yw'r ysgwr yn ymgyrch, yw'r llunio ar yr ysgwr yn ymgyrch, ac mae'n ei gweithio i'r hwyl yn ymgyrch, o'r cwmŷ o'r cyfrifiad yw'r Llyfrinol, i'r Cicil Graz. Mae'n gweithio'n gweithio'n amser Yniglis Hopkins, Felly, dwi'n troi'r format yw'n gwneud yn ymarferio'r rhysgwyr yn ysgolion yng ngyfryd. Gwylwch wrth gwrs, maen nhw'n gweld i'n ei gweithio yn ysgolion ar y panel. Mae, rhaid i'n ddim o'n gwybod y format, rydyn ni'n gweithio yn ysgolion ar y cyffredinol iawn. Rydyn ni'n fawr yn gweithio'r gweithio'r gwybod o'r periyod o'r pethau. Mick yw'r gweithio'n gweithio arall o'r gweithio'r gweithio arall o'r gweithio'n gwybod. ddylai'r ddweud o'r lluniau o'r sifftiau, o'r ddweud o'r reineisio. A gyd, mae'n rwy'n trefnod oherwydd Llyfod Martyn yn cael ei ddweud o'r ddweud o'r ddweud, ac mae'n dweud gennymau i chi, ac mae'n gael y gymmyneddol. Mae'n gweithio i'n gweithio i'r ddweud o'r ddweud. Yn y peth yw'r oed i chi. Yn y peth o'n gweithio i chi. Thank you very much for putting this event on, I'm absolutely delighted to be here to tell you about the work that we have published. I'm going to try and keep what I say very brief. I apologise in advance for those who lost on the slides that I didn't actually mention because I did and there would not be much time for Lizzie and Martin to respond. At first possession first of all, and as I'm sure you're aware, ac mae'r rhaglenion yn unrhyw yw'r mwyaf ar gyfer y Gwyrd Nigol yw'r rhaglenion i'r llunio'r rhaglenion. Felly, mae'n gwneud yn heddiw'r rhaglenion i'r llunio'r rhaglenion, rydyn ni'n gwych yn llunio'r rhaglenion i'r rhaglenion, ac rydyn ni'n gwych yn llunio'r rhaglenion i'r rhaglenion. Y 1925 Llan Registration Act yn ymgyrch i gynnwys i gynhyrch yn llunio'r rhaglenion, but it couldn't extinguish the title as long as the title is registered, so instead it imposed a trust of 12 years, and then the adverse possessor could apply to be registered as the provider. 2002 Act made quite a radical change to that, and the Act goes forward with the idea that is only obtained through possession, sorry, only obtained through registration, not possession. So after 10 years you can apply, as an adverse possessor, to become the registered provider and you only obtain title if you're successful in making that application under schedule 6. We didn't reopen that basic policy decision of the 2002 act so we didn't go back to the question of whether title should be obtained purely through possession or whether schedule 6 was necessary. And equally we took the view that there was no point in trying to rewrite schedule 6. It was written from a blank piece of paper. We've got quite a lot of experience of where the pressure points are within the procedure and so what we decided to do was address specific issues that had a vision with the schedule and also consider how schedule 6 interacts with the general goal of adverse possession. That's relevant as well to something I'll say about priorities about the approach we took to that legislation. In terms of the schedule 6 procedure, I think that the most significant proposal we have relates to Zalvin Perry. So after 10 years you can apply to become the registered provider. If the registered provider objects, your application is rejected unless you fulfil one of the conditions in schedule 5. One of those relates to boundary disputes essentially that if you are the provider of a joining land and you reasonably believe that the land you are in adverse possession of is yours, then you can obtain registration on one of the conditions in schedule 5. What Zalvin Perry bought to light was an uncertainty about the relationship between your reasonable belief and the timing of your application. So do you have to apply as soon as you cease to have reasonable belief? Can you apply as long as you have reasonable belief at any time for 10 years, even if that was several years before you make your application or what? And in Zalvin Perry we were told that you have to apply quite soon after your reasonable belief comes to an end. We thought the general approach as Zalvin Perry was the vital one, but that it was leaving things a little bit too vague to say quite soon or shortly after the belief comes to an end. So we decided to put a time limit on that of 12 months. And did we apply to the other possibilities? We thought to require a major application was simply not realistic because it's usually the fact you're reasonable but it comes to an end that makes you think about investigating the title. But also we didn't think that you should be able to apply any time and say well 12 years ago for 10 years I had a reasonable belief. And that's because we took the view that there is a general policy in settling these boundary disputes and that they're not settled, the chances are they will simply come back. So I'm going to pause there. Oh God it's me. Okay I'm going to say something really unfashionable which is that I really like adverse possession. I like it because it keeps the ownership of land in tune with people who are losing it, using it. Land is a very, very scarce resource and adverse possession responds to the need to keep it in possession to keep it used. So sadly I would scrap schedule six. I would go back to pre 2002. I know that option has been rolled out so there we go. One of the virtues of adverse possession is that it sorts things out without litigation. So if your land registry plan says your boundary is there and if your fence is there in unregistered land, if your deed says the boundary is there and your fence is there, if your land is unregistered and you realise there's a problem, you know that after 12 years the law of adverse possession will put your boundary where the fence is. Nobody needs to sue anybody. It's just there and the law of adverse possession has just sorted it all out and there's no confrontation and that is even more useful than the general idea that you need to keep land in use. So my biggest sadness about 2002 acts is schedule six and within schedule six my biggest sadness is that the saving for boundaries depends upon reason of your belief. Now even though you have to forgive me if I ramble on but this is the one I'm on which I'm going to have my biggest rat, even though the Land Registration Act was intended to make registered title squat improved. I spend an awful lot of my time as a practical judge dealing with adverse possession disputes. It hasn't made it go away. It's just changed the shape of how adverse possession is addressed in litigation. Largly it's addressed through the reasonable belief about boundary exception and unfortunately that means that I have to take the little people's heads look inside and say was there a belief in that and was it reasonable and you can't just ask people did you believe because of course people lie they don't mean to lie they believe they're speaking the truth but people change their perceptions under pressure and so yeah of course I always believed it was mine and that's pushed out under the pressure to meet the statutory condition so I am really sad about schedule six. Zom parry refines it a little. I mean this is the one where Nick and I probably are at various we are best of friends but I don't like it about 12 months. It's very very difficult for anybody to think oh do you know I don't believe that's my land anymore but this doesn't stop like that. Think about things on which you've changed your mind. How do you know when you stop believing something and even harder how do you know when you've stopped reasonably believing? Oh god I'm being unreasonable now aren't I? So I'm not a happy bunny on on schedule six. Can I pray to you further before we hand over to Martyn? When you say one of the biggest attributes of adverse possession is to settle boundary disputes with that conjugated litigation are you a fan of adverse possession in the broader context where a squatter goes on to a peaceful family that's nowhere near to his own land? A pie or near his own land but not a boundary yes yes that is less easy to defend than boundary adverse possession but I do still like it because it keeps landing you soon and I think if somebody so doesn't care about land on this small island but they haven't looked at it for 12 years I don't feel a huge amount of sympathy Can I pray in a different way which is where the general boundary is all fits within this because if it's a general boundary the thinking in terms of being able to resolve boundary disputes without litigation if it's a general boundary you don't really need litigation because you can look at it and say well it's it's part of a general boundary and so the the title doesn't have to be changed that doesn't have to be an adverse possession claim so I wonder that so I wonder if thinking about that condition in schedule five has been no no I'm guilty I introduced it it's been concerned with boundaries if it's not really concerned with boundaries it's more concerned with the adjoining piece of land which is sufficiently significant that it doesn't come within the general boundaries rule sadly um you're litigant in the on the capital omnibus does not understand about general boundaries most of the boundary disputes that we deal with in the context of adverse possession are about inches not feet I went to a site visit this morning which was a boundary dispute where the dispute is about the thickness of a brick wall so the dispute is a brick long and it really matters to these people it is no good my saying to the mother that within your general boundary which manifestly is because missy's thing over here wants to know whether she can put plants on profits of all and mr sing over here is determined that she shall not and is determined that she shall not let Ivy grow on the fence unless you there's no way that anybody can save them I just your general boundary um it is it is the real people who frame the dispute and I don't have jurisdiction to say to them off you go it's a general boundary because the law also says that they have a real boundary it is the law that there is a boundary and it's hair thin and it is alive and where people decide that they actually want to know where that is they are entitled to discover where it is and general boundaries sadly is not an answer it is for the reasonable person it is not for people in the dispute because people in the dispute are not ways from that Professor Dixon do we have any not really I mean I agree with every word that Lizzie has said really they do you co-author a book I think I think the attempt to abolish adverse possession in relation to register title had nothing to do with making register title so far more guaranteed it was an ethical political decision perfect and reasonable to take that but I object to the pretence that it has anything to do with security of register title I object to that very much and abolish it if you will but don't lie about it is how I feel about it so having said that having said that I mean you know I don't like the introduction of reasonable belief the same as Professor Cook because I just think it introduces and please take this the right way I don't quite mean it like this but a neomoral element into this I don't like it because that's not what adverse possession does and so I know did you consider removing the reasonable belief as a part of your it certainly came up in the consultation responses we had we felt it did serve a purpose and of course the reasonableness is is something that lawyers use a lot and lots of different contexts and I think we took the view that if there is going to be a limitation on the pun intended a limitation on the ability to claim adverse possession then reasonable belief was as good as any that we could possibly replace it with a and of course adverse possession you have to look at intention to possess so you're you're already lifting up the head and you do it you do it objectively reasonable I think that well the objectivity of the animal is well established what has he done does it look as if he needs to be there and that's not too difficult because you're looking at a fence or whatever it is I don't know how to translate that to reasonable belief given the evidence he had was he reasonable it was on his side of fence yeah I mean I just think that the legislation wants it both ways you don't want adverse possession just get rid of it just get rid of it don't don't don't say it serves a useful purpose except when we don't want it to because it hasn't got rid of any boundary any adverse possession disputes it's just changed the terms in which they're framed so it hasn't worked mindful of time and we've got four topics to do stuff does anybody have any questions to put to the panel yes yes speak up so that the microphone can hear you as well all right yeah it's just a question for I just wanted to understand you said I don't like reasonable belief in corporates a moral element in adverse possession is that what you think adverse possession shouldn't have anything to do with wider moral concerns or social background like that do you think you should only be regards to boundaries no I just think adverse possession is about the reality of who's using the land and I think that's what it's about and I don't think it's for other people to say you shouldn't be doing that and the reasonable belief is what's reasonable to me isn't reasonable to you he's a liar she's a liar is what you're going to get it shouldn't be about who deserves to have a land that's not what it's about any other questions on adverse possession yes here are you directing your question now I think I didn't quite catch the last few words and carriages oh that was that article wasn't it yeah the lord of the case lord I have to if you're thinking of the article in the convention a little while ago I have to express some disagreement with that I don't think I don't believe that squatter's title is being traded I don't think for a moment that any that there is a market in unregistered squatter's title because land is too expensive certainly people squatters will not register until they have to but they have to on sale and I felt that that article was not supported by evidence so I think this is the Pavlovski and Browns article there was also the cobbin fox article which suggested that although they're on the same point the cobbin fox one argued that squatters just won't use schedule six so they'll sit quietly and they'll just live oh yeah if you found that in case I mean you don't know why would they register until they happen yeah and people register even try to register when it flares up or if they want to sell but they register when somebody gets stopped and says you shouldn't be on there but otherwise why would they because you don't want you don't want to provoke a dispute and the trouble is that an application for registration leads to dispute if there's an objection so um um litigation is bad shall we move on to priorities thank you I have the list to say about priorities so the main reason that I don't think you say tell me much about priorities in our reports um perhaps what's more interesting than what we do say is really what we don't say we do have a look at section 29 and we do discuss a couple of aspects of it so we look at what postpone means it's a controversial term it was introduced in the 2002 act in this brand new language it's had quite a lot of criticism but I think we've reached a stage where people generally know what it means and it captures the idea that if an interest is postponed through priorities that doesn't necessarily mean it's lost forever it is lost forever against a dysfonie and anyone who receives land under that dysfonie's title but there may be other persons for whom that interest is still relevant so for example the disposition is a grant of a lease an interest that loses priority has lost priority forever against that lease and whoever owns that lease and then the interest granted under that lease but is still relevant as far as a free hold title is concerned so we discuss postpone and we discuss some of the concerns that have been raised with the term but we conclude that there aren't really any issues there that merit law before in particular we didn't think that we should be replacing postpone with another word and generating the same case for all over again discussing what our new word meant we then discuss valuable consideration because to benefit from the special priority law under section 29 you need to have provided valuable consideration it's only partially defined in 2002 act in that we're told valuable consideration excludes nominal consideration in money and excludes marriage consideration we thought it was a bit odd to exclude a nominal consideration in money but not other types of nominal consideration so in fact one recommendation we make is to remove that limitation so that any nominal consideration could potentially be valuable consideration but that doesn't mean that it is valuable because you still have to meet the father saying that consideration is valuable but what it means is that whether the particular consideration that's been provided under facts is valuable can be considered by reference to the general law and one of the key issues where this was referred to us is in relation to peppercorns because while it's seemed a bit hard to believe peppercorn consideration is still used quite quickly we're told in commercial transactions and it's used to indicate that maybe transaction is a commercial one not a gift well if a peppercorn is nominal and that's an if it can still be valuable consideration under the 2002 act because only nominal consideration in money is excluded but we didn't feel it was for us to say that a peppercorn is always valuable consideration we thought that would go too far and that says something about how we view the 2002 act we don't view the legislation as a code we don't see it as the only thing that governs registered lands we see it as a piece of legislation that applies exclusively in its scope of operation but which sits on top of the general law and is informed by the general law so we take the view that there's no reason to define valuable consideration in the act because the general law will define what is and what isn't valuable consideration so as far as section 29 is concerned we don't actually do very much our one recommendation really is around removing that bit of the definition of valuable consideration the most significant thing we say about priorities in fact relates to unilateral notices the notices that we can put on the register without the agreement of the managed register of and a particular issue was referred to us in relation to these that when certain rights including the nobule rights cease to be overriding rules vests there is a rush of applications to register those rights and what that walks alive is a real asymmetry of information in the process at the moment if somebody puts the unilateral notice on your land and you project to that to that entry you can't require them to produce evidence of what right they have they don't have to produce evidence until they're standing in front of Lizzie the tribune and Lizzie asked them or demands them to produce the evidence we thought that was too far down the dining process and so we amend the procedure to ensure that if there's an objection to the entry of a unilateral notice more evidence has to be provided to the land register rather at that stage in order to determine whether the entry should be made now the final thing I say about that is that we did toy with the idea of whether we could have one system of notices not two so they do we actually need to read and unilateral notices and probably the strongest reason for keeping the two types of notices is the desire for commercial confidentiality that a unilateral notice is the only way to ensure that an interest is put on the register without commercially sensitive information being made publicly available now our consultees were very strongly in the view that commercial confidentiality was significant here but elsewhere in that registration it has been more than moved transparency and so you might ask the question whether it's justified to have a scheme of notice entry which is justified which is based on the desire for confidentiality any responses I used to work with a solicitor who liked to draft leases for a agreement for a rent of one red rose if demanded annually I don't know of that counts as valuable consideration I suppose peppercorns used to be valuable didn't they yes yes so now it might be you know half the sainsbury's I think that the menorial rights thing was problem because people who have menorial rights and wanted to get a register splatter notices or applications to enter notices across large numbers of titles and it caused a lot of agro I think am I right that that has largely worked this way through the system yes um I I am not really convinced that there is an information imbalance aside from that menorial rights for a special case and nobody really wants to talk about that menorial rights because they're a bit funny but generally you know someone applies for a notice and gives them information in and somebody objects and then they exchange the information to try and sort it out because nobody wants to come see me because litigation is bad for you so people really try to actually swap information certainly if they haven't done so before the reference to the tribunal they certainly don't wait until they're in front of me because they have to exchange status case and basic documents straight away so I'm not sure about that but I don't have strong views no I mean I I I think the use of priority is difficult but what choice was there really it's a it's a better word than void I think you can say that and so I have a very good sympathy with with the difficulties with that I think I'm not convinced that we shouldn't have defined valuable consideration but I think the priority will be so central to the legislation except there's no evidence there's a problem in practice so unless you know that there is I mean I don't know it I suppose but we probably have a particular view of evidence and that we rely on what consultants tell us and we we were told for example that there is quite significant concern around the meaning of or around where the peppercorns would be accepted but we're not in any litigation as far as I'm aware we've had cases where people have said there's been valuable consideration it's been alive but we've not really had anything I mean the one that bothers me about postpone most of all actually isn't the legislation it's the land registry's response to it I I am very unhappy that the registry appears to be willing to put on the register by means of a notice rights which have clearly lost their priority through postpone and I think that that is because the registry is less willing to engage in the management of a system than it was previously so what situations do you have in mind well let's say somebody applies to register a restrictive covenant that is perfectly valid but was created before disposition for value so it's not binding on the current proprietor okay I understand that the registry I may be wrong but I understand that the registry will put that on the register and then we'll write to the proprietor and say do you object I would much prefer them never to put it on the on the register but I have a bit of notice it doesn't go on well I've been told by the no okay unilateral notice does go on but the registrar doesn't know whether the purchaser was a voluntary purchaser without notice well you know be without notice they just need to read valuable consideration they have to be without notice such a 29 doesn't say yeah but the the the register are not necessarily I have no list of I am worried I'm just worried I have little evidence I don't like doing anything about little evidence but I'm worried that the registry will put on the register things whose priority has been lost and I think that land registry is concerned it's probably the risk of doing the opposite yeah yeah nice that they will not put something on the register because they take the view that priority has been lost and it's subsequently found the priority haven't been lost because it wasn't available in celebration yeah it's in my heart to be paid in because that's your job and I can see that's a very attractive to the registry yeah I think it goes further because I think in order to make that assessment under section 29 Lambert it will be asking Lambert to speak to to make an adjudication to to be a judge and the notice doesn't guarantee the existence the validity of the underlying interest no but that's not the issue it's not it's validity that's the issue it's priority no one doubts that the coverage is there yeah it's it's priority yeah well what we're really arguing about what I'm arguing about is the role of the registry I prefer a more active registry and in the current climate but I think where I'm struggling is to understand where that active registry crosses the line into being an adjudicative body which I don't think it should be I think I would need to have a concrete example to know whether I agree with you and I'm not aware of that happening and I need I mean I understood the example because I haven't really thought the facts the one situation that comes to mind if we do discuss in the report is where there is a form of overriding interest and an application is made now to put that overriding interest on the register and there has already been a yeah and I agree with what you recommended about that because the registry is too timid put them on actually that there needs to be a reason for putting it on well why why does this still exist given there's been this position for that yeah may I just ask you a question as as a judge are you happy with fan consideration not being defined because it's potentially giving you a sort of an open book to decide what it is on the merits of a particular case um what is it that's difficult to decide a sudden fan I can't imagine I mean I've never had to decide but I can't imagine spending a week and night over it somebody pays 10 pounds okay it doesn't feel like a big possible okay I may be wrong and okay what you're now going to wrap down it strikes me that in a world where section 28 and 29 are quite quite rigidly defined with the law of certainty in sections 28 and 29 that is potentially one of the sort of safety bails which could I think be a conduit for some judicial discussion I don't like overdefinition so I would rather leave the law a bit of room to read yeah I can certainly see that and I imagine that's quite of the reason not to define let the general blade yes within the conditions yeah because that there is a fair amount of case law on the meaning of valuable consideration outside of land legislation I think it's part of our concern is that if we try and provide the definition for land registration but what are we doing I'll be codifying the case law generally I'll be coming up with a best spoke definition for land registration or what what what you make a definition and some will produce a dodgy case before we move on as we must would anybody like to ask the question about priority so we'll move on so we're now going to talk about recordification isn't it one of the less contentious aspects of land registration I may say a little bit more yeah please go let's try not to say too much um so we look at alteration and rectification and one of the things I would encourage you to do is have a look at um publication it isn't part of our formal report but that we've put online which is a track change version of the 2002 legislation act that shows what our recommendations or shows that we all can do because that is an amending piece of legislation and have a look at what would happen to schedule form of the act under our proposals we had a number of aims in mind in our recommendations on rectification and some of them were trying to resolve debates that have clocked up under the 2002 act so the first one um is that we want to ensure that your ability to seek rectification of the register is not a property right in other words we want to put the melody to rest um in fact in our consultation paper we were a bit more timid as we suggested its proprietary status doesn't matter as long as we say that it's not an overriding interest in our report we're going further and say no it shouldn't be treated as a property by tort we also want to put gold hub um on a clearance statutory footing so in other words once we label the cause and be able to restore priority when the register is rectified in response um it or when the register is rectified so the other points on here i'm going to pick up in what i say should note at the outset we only deal with correcting a mistake we don't look at the other grounds on which the register may be altered um so in essence we're only looking at alterations that constitute rectification in that very special meaning for 2002 act as um that meaning which is linked to the ability to claim anonymity one of the points we have to consider is should we define the mistake um because the legislation doesn't define it um we did have some consultees writing and saying that it's such a essential concept ought to be defined but for each of the different view we thought that there is in fact an advantage in not saying what the mistake is because that enables the concept to evolve and responds to different factual patterns we think that what will for a moment say pretty much captures um what the mistake means at the moment essentially it means the registrar has made an entry which the registrar wouldn't have done um in the two state affairs had been known but what we do is clarify a couple of things that we think um their legislation should ensure constitute mistakes one of the most significant is that a scenario i'm sure you're familiar with the ABC scenario i mean so in Argentina it's clean as the original register prior to offspring cottage there is an identity fraud through which the cottages transferred to mr brown there was then a legitimate sale by mr brown to mr blue as you're aware um landlords would look at that and say well mr brown's registration is clearly a mistake but they've argued as to whether this blooms registration is a mistake and we've variously been told that rectification is available against mr blue because her registration is a mistake because it's the consequence of the registration of mr brown or that the registration of mr brown and mr blue are both part of one big mistake that's happened in our consultation paper we initially took the view that while the position of mr blue isn't necessarily clear in the legislation the courts haven't hesitated at saying rectification is available and so our provisional thought was that we didn't need to say anything about it in the legislation we were corrected not least by a consultation response from one at miss goingmore um he pointed out to us quite rightly that the position of miss blue was probably more precarious than we had suggested not least because the case or the strongest case or is or at first instance level and so we decided the legislation should actually clarify that the registration of mr blue is a mistake you then start to work through the consequences of saying that that registration is a mistake because let's say that the registrar when this dispute comes to light decides that miss blue should remain on the register and mr brown should be more miss green should be confident said it is that doesn't change the fact that miss blue's registration is a mistake and it would mean potentially that every single registration that takes place after miss blue's registration is still a mistake so in perpetuity everything that happens this title is technically a mistake but we thought that would not be a good position to leave things in um so we suggest that once the decision has been made um that miss blue stays on the register we should wipe the slate clean so then anything that miss blue does does not have to be treated as a mistake one of the most significant things we suggest is introducing a long stop into the ability to attain it verification so we suggest that if a mistake has been on the register for 10 years then generally it should not be possible to change what the register says yes we think there is a benefit in providing security in registration and in insuring after a particular period of time if you're on the register you can feel safe in the knowledge that you're going to be able to stay on the register it's not a limitation period however and importantly the long stop doesn't affect the ability of somebody to obtain an indemnity so in our example if miss blue was on the register for 10 years and then the forward came tonight what we're saying is that in most cases that means that miss blue can stay on the register she doesn't have to be worried that she's going to lose her land but anybody else who's lost out can still attain an indemnity so we're just helping to make that decision as to who gets the land and who gets the money multiple legislation you might have come across through partially hackney the example we have here is a fairly simplified version of that case let's say that the disputed area is part of black paper and is registered under black paper's title but then by mistake it's entered under white paper's title as well so we have a case of double registration we think that these cases should be resolved under schedule 4 not through adverse possession so we think partially hackney is correct in that respect but we were worried that the legislation may not really accommodate the outcomes in these cases because if white paper has now been happily using this space for say 50 years and then the error comes to light the legislation seems to point towards restoring the land to black paper and that's because the registration of the black paper in the first place wasn't a mistake so there doesn't seem to be a ground for removing it from a black paper's title so we suggest the cases of multiple registration should simply be seen as cases in which there is a mistake so again clarifying what constitutes a mistake blackpins of courts can look at what should be revised in these cases applying the general scheme that we give in schedule 4 and that is all I'm going to say the whistle stop tour of indemnity of electrification I'm sure there's a lot that you'd like to respond to Do you want to hear first? How long have you gone? I have to say that and Nick knows I think this I think this is a wholly pointless waste of time reforming this but I think it builds on a fundamental misunderstanding of how this works I agree with taking out the right to rectify as a property right and I think it's you know no sane person can think it's a property right um with the greatest respect to Lady Arden I mean I think you're dead right that's unarguable but but I think this reform is both on a conceptual view of rectification not a real world view because the I'm trying to avoid the word mistake for me for me the misunderstanding is to think that a mistake means the register should be changed because the legislation doesn't say that the legislation says that when the proprietor is in possession the register should not be changed unless one of three things are met so the fact that that miss blue is 20 years down the line if she's in possession the register is not going to be changed she's not in danger so removing the idea that it's a mistake is just tidying the books on the bookshelf and in those one or two cases where you might want to do it why would you want to stop it in those one or two cases which we've never had which we've never had where it's unjust because for some extraordinary reason okay give her why would you want not to why would you not to so I just don't think this adds anything to where we are now and I'm sorry to say that but I when I think the long the long stop is a paranoid view about certainty of the register that is ridiculous so I just think it's pointless I genuinely think it's pointless the whole the whole reform of this so you disagree with the direction of travel or just the necessity to have but wait but but that's the point what is the direction of travel what is the direction of travel because the original schedule six has a direction of travel what is the direction of travel I think the direction of travel is towards greater security in legislation if there's a direction that cuts across what the 2002 axis and what we're doing it's probably doing exactly what you don't want to do which is it's placing more emphasis on legislation and that's the direction that goes back from 1925 onwards and I think the other thing I say is that we don't invent these things and then put them down and not ask anyone about it and we did have a lot of snow we have mixed review or mixed responses to our proposals around long stock but we did have a lot of support for it and I think to some extent there are situations where we haven't done things because there wasn't there wasn't evidence of a problem there are other situations where we have done things despite the fact we don't have cases showing that problems are coming up because we took the view that those the possibility of those problems arising is not theoretical but they are real problems in the registration system but I haven't done a fully extensive survey but I haven't yet found the case in 120 odd years of land registration where some of these plugs change the register after 10 years and I don't think you're going to find one and I I therefore I think this is this is solving a problem that doesn't exist in order to say the register is more secure but I think where I would question you is in only looking at the current case law as your sole sole sole evidence but I'm looking at 125 years old case law yeah I'm not looking you know I mean that's pretty significant I would say okay series of points one is the the recommendation of ensuring the right to rectify it's not a proprietary writing obviously fantastic point two making sure that Ms Bloom so ABC gets an indemnity that's the problem of the moment if she's not a mistake she doesn't get an indemnity that's absolutely right took me a long time to comment point three I thought as I looked again today I started getting this sort of trouble in my soul but miss blue is safe where she's in possession I thought the problem with the the the the long stop was trying to meet me where miss blue is not yes yeah yeah in which case at the moment she doesn't have security um so where you've got a position where a is not in possession and c is not in possession which is perfectly possible I think the long stop is quite useful yeah um because I'm just qualifying that slightly sorry in that blue is almost safe for she's in possession but there is the exceptional circumstances now I yes that exceptional circumstances does does bother me just to jump off the tangent so this is the unjust not to rectify yeah yeah okay um I have changed my mind about miss blue since becoming a judge so learning about registration particularly talking to people who are experts of the torun system where dynamic security has always been a much heavier emphasis than the static security in our system has favoured until 2002 to until 2002 if the current sorry she's too long he's too long a sentence until 2002 if the register didn't match the position that it would have been in unregistered land then it was wrong and it had to rectify the old section 83 of 1935 so we were very much into dynamic security and then the picture changed 2002 so the new proprietary possession um really ought to be staying there and the courts have had enormous difficulty taking that in the way it was intended and once I became a judge I understood why because emotionally it keeps harder to deprive something somebody of property that they bought and have lost than it is to deprive someone who's only just had it or wants to keep it so intellectually see he's much stronger and more attractive than a because he ought to keep landing cars he ought to keep landing around as the indemnity's fine but emotionally a trump c almost every time not for me and this is probably my cause because it didn't for me it didn't for me until I started to do it and then silly old silly old judge finds that actually this is really counterintuitive and and doesn't match for me the emotional reality on the ground of mr n in our ABCC but it's fine how good it is so and I have to say just going back to our land your lectures we don't want to remember but this group or much of this when after the ABC scenario did largely go for a now whether I find this emotionally difficult a lot does not matter um what does matter is that the statute didn't have the intended effect and that's why the case law doesn't become difficult so if it is still because of legal policy is not for me to say I I am the the humble journeyman who will implement whatever's there and will deal with the law that's in front of me but if the law wants to ensure that this blue keeps the lap it's got to say so loud and clear in a way that is beyond the wrigglings of the likes of me so if you want to reinforce me to lose security by on by on me to do it but that I suppose I'm just revealing the emotional problem but the law runs up against but that's the most filling that because you've reached that decision um or you've reached that position you agree with the long stop I just don't think it's just the other the only thing I can say was you're saying you look back over 125 years but if you look back over 125 years there's pretty much no rectification cases under the 1925 act because people won't do you before that they're doing this and and therefore you won't get these long-stop cases yet and so it's the idea of you know getting rid of the carry forward mistake on the time that you think that we'd say I think it would and we'd all be saying silly silly I was walking and she's not thinking about long-stop yeah I we didn't have anything apart from Martin can I say what Liff and I were smiling about when you were talking we went to Auckland to a conference on the torrent system and I think if I'm wrong but I think what we learned was the torrent system isn't it it isn't this wonderful nirvana of safety in the old title because they have a many excuses they just call them different things yes absolutely it's a lie the torrent system is not going to go that far I went the first incarnation of that conference in 2002 I think and I still have a punch drawing on my wall because it changed my life the part where I say although I'm always hard on on law reform our land registration act is a fantastic success and we are arguing we are nibbling about detail I want the torrents law is anything it's the priority we do today can I ask you Nick when thinking about this ADC and in the in the consultation paper she said you sort of pretty much assumed the cases of on the giving a chance direct point they said did you revisit the whole question about whether we should be actually giving greater security to see with tighten up the legislation give them that get leave no wiggle room at all I think to some extent we try to do a couple of things we we tried to improve the position of a success is entitled because we think that the legislation at the moment is generous towards a but not so I think beyond that we weren't trying to push towards what we were trying to do is ensure that the legislation sets down the principles that should be used to decide cases while giving judges enough wiggle room to decide on the facts we're probably doing this doesn't matter no it's fine I actually wiggie not a problem to me yeah so I don't think we should open this up to questions because I'm sure there's some questions on retrogation anybody wants a yeah void board this position is not this registration of a void board this position is not a mistake and some people agree with that oh some people don't I think the problem is the word mistake actually it was clearly avoidable this position is not a mistake but it's still wrong because so we weren't going to suggest the legislation so far yes it might not be a void but when it is avoided but that's when it is avoided then surely it's an error that can be corrected and rectified and compensated but that's when you update the register register was correct when registered but then you don't no and I think that's wrong but why should why should somebody subject to a position get any money because they're largely going to be implicated in the board in the first one in order for a decision to work against the reason but not necessarily I mean my big problem with it we don't agree what's void and what's voidable English law doesn't agree with what's voidable so it's great to have that distinction but we can't agree so it's it is undue influence avoid or avoidable transaction avoidable avoidable so we agree what about the abc scenario where it's avoidable A to B is avoidable but nine point of it but it's not there but A remains an actual application is there an argument that the right to rescind the deed is proprietary no I hope not I hope not but then if it's something that you've worried about not until now I'm not worried about it now but it's not proprietary it's not proprietary we're still waiting for you to talk to me that's not the point of it I don't know any other question well both A and C come in all shapes and sizes there may be many reasons why why A is not at home A may be an absentee landlord for whom we don't have a lot of sympathy or A may be a little old lady who's gone into residential care or A may be in prison or A may have left for some good reason that I'm making things up obviously but equally C generally met C is going to come in all shapes and sizes C likewise may be about to become an absentee landlord you may be by-to-let these frauds are easiest to perpetrate in rented property that is not the freehold's home so very often neither A nor C had the slippers by the far side the fraud tends to come to light relatively shortly after so C moves in or doesn't move in gets the builders in and then A rolls up in the car and says to the Lord what are you doing there so it's relatively unusual for C to have moved in and set up home and got the slippers by the far side and moved to get a mouthpiece so I think my rather rambling answer to your question is actually it's not really about A is always like this or C is always like this they're always different but underlying that is that it was his and he's had it taken away I mean they're going to get cash right they're going to get cash they may not want cash oddly enough it's really going to be that yeah of course they do right of course they do but what about C who's also paid cash I mean really like this ancient farmhouse that they bought that they've been looking for for 20 years and so there's something you see there's something special about that I think that that changes it's really clever because it focuses on a console board that we we understand and that's possession and it links ownership back to possession and I don't think the way you said you six doesn't yes and I don't think it's random that it's possession but it takes quite a broad interpretation of possession and I think that argument that possession is important reflects a malware understanding what possession means that you could be in possession under schedule four if your tenant is there and you've never actually walked through the fund by yourself yeah is that the sort of possession because all of it but I think of they're feeling more sympathetic to people who are in possession I think I'd feel sympathetic for them if they had moved in for a week and that their kids had just started in the local school the new bottle of whiskey is open on the mountain base in the but it doesn't say occupation it says possession but you're not removing the defence no but but it's the argument of why should you feel sorry for A I mean but well I just think it's so fact dependent A may be an idiot it is it is yeah I'm not saying we always like A better than C but at least if A is a chance to have a claim against yeah I'm saying that there are cases where it's really hard to be private I'm not saying it's a variable but I'm just saying that actually the emotional tug turns out to be much stronger than I had expected oh we've gone over the hour but does anybody have any other questions on rectification I think we are going to go over a little bit just to discuss indemnity if that's okay but are there any other questions on rectification though indemnity so we'll pass over to Nick for our final question indemnity um I think it's something that sometimes overlooks as a topic in our I was wondering elsewhere as the ugly sister to rectification Cinderella we talk about or um we talk a lot about rectification as we just have and we disagree fiercely about rectification but I think very much about indemnity lots of the time we take it for granted that the legislation system says if you lose out then you get an indemnity um but what I think we need to bear in mind is that the stone indemnity scheme we have is not inherently reflect policy decisions that have been made about the nature of the register title that the person has and it's something that operates quite magically in land registration because at the point of registration all of the risks of that transfers all of the risks that the transfer to Mr Brown was avoid transfer pass from Mr Brown to the register strug and indemnity bias and in fact is a purchase away almost vulnerable is in that free registration stage and the most danger you have is that that would just be our clever and pick up on the fact that a fraud has taken place which your solicitor hadn't identified because then they won't register you and the risk of that fraud you find lies only with you when we had our consultation paper we didn't put forward provisional proposals to be formed indemnity we asked a series of of open questions about the nature of the indemnity scheme we should have and what came back from our consultation responses is that there was an appetite to look at the duties that lenders and convencers are under and there's an appetite to look at how vigorous identity checks are but there was no appetite to move away from that and in particular what people said to us is that they were happy with the idea of a duty of care being imposed but only if two conditions were met the first quite reasonably is that those who were subject to the duty understand exactly what's expected of them to comply with it and the second perhaps more tellingly is that no duty of care should interfere with the ability of the individual who was lost out to obtain indemnity from land registry so no duty of care of as broad a nature exists in a number of other jurisdictions including scotland for example so what we pay might have been in the end is adding to the existing rights and recourse that the land registry has so that if it has paid out an indemnity it should be able to bring an action against a convencer if that convencer has not followed steps to verify a person's identity that land registry will step down in directions so we bend about expanding land registry's rights and recourse but think when you stand back and think about where where the consequences of fraud are going to lie there are many choices there's only three there's the consumer and I think most people instinctively will say that the individual shouldn't lose out although there is that risk if land registry spots the fraud before registration there's the convencer and I think the convencers would quite reasonably say they should have bear the loss unless they have failed to maintain professional standards so you've only been left with land registry well I mean I agree with Nick I think indemnity is the key function of our title guarantee system and without it this wouldn't work and I think it it's what gives confidence and it's what gives value and it creates moral hazard so I'm all in favour of increasing rights of recourse I'm glad there's no indemnity cap because all that would have happened remember was it alberta alberta where the land registrar of alberta proudly it is out yes is it anterio or alberta um ontario ontario ontario proudly announced that they paid half a billion canadian dollars in indemnity was just told professor obkins and I that their system wasn't working yet because what happens is all the parties got title insurance instead went to private insurance companies so I'm a big fan of indemnity I think these proposals are absolutely spot on yeah I agree the um there is a public perception that land registration is about the gathering of information under the land registry is an information service it's not it's a guarantee service um the caping indemnity would be a very bad move because it would simply put an awful lot of money into the coffers of the title insurers and that would be a great shame so yes I'm I'm very happy with those what's happening out on which to end would anybody like to um yeah don't ask any question I think not so should we draw it to it close to be happy with that yeah so thank you very much to our panellists for coming out to Cambridge and thank you everybody for coming as well