Preventive control of legality
1. Previous question, regarding to your LR system: do Land Registrars or Land Registries carry out a legal scrutiny or assessment of the documents or applications submitted or (conversely) are registered without a previous examination?
Applications are scrutinised to ensure they comply with legal requirements relating to land law and registration. The Land Registry will need to be satisfied that the transaction and the documents are valid in order to avoid any mistakes in the register. If there is a mistake in the register the Land Registry will be liable to pay indemnity to a person who suffers loss as a result of the mistake or rectification of the mistake.
2. What does the object of the LR assessment consist of? Are the documents presented and the content of the registration books or land books (or any other books or lists of your LR organisation) the only elements that land registrars bear in mind for carrying out their assessment and then to accept registration or not? What is the situation in your LR system? (In any case, please, indicate which of these means are able to support the land registrars’ assessment and which aren’t able or select some of these cases, or otherwise take them as basis to answer.)
In England and Wales we can request additional documents and evidence if we think it is necessary or desirable, or serve any notice, and we can refuse to complete or proceed with an application until we have received the documents or evidence, or until notice has been served and time has been given to respond (rule 17, Land Registration Rules 2003). The same applies for both first registrations and transactions with registered land. It follows that we can look at not only the documents supplied to us, but also historic registers, plans, documents and anything else that might be relevant.
3. Otherwise, the correct answer with respect to your LR assessment would be:
LR system does not accept documents that don’t fulfil all legal requirements.
We can cancel applications if they are substantially defective, either on receipt or at any time thereafter. We will normally raise requisitions, to give the applicant the opportunity to remedy any defects in the application, but if they do not do so within a reasonable time, the application can be cancelled.
4. A specific case: let’s consider an application for registration based on a document or deed with lack of legal prerequisites. What would your LR response be?
See reply to 3 above.
5. In case of rejection or abeyance of a document, does your system provide legal possibilities to request a review to the parties or stakeholders? Do they have legal possibilities of appealing the Land registers’ decision? Please, describe the procedures if applicable.
It will depend on the reasons for rejection or delay.
Normally there is no appeal for rejection of an application by the registrar if an application is substantially defective. However, it is always open to an applicant to apply for judicial review. A claim for judicial review means a claim to review the lawfulness of:
– an enactment; or
– a decision, action or failure to act in relation to the exercise of a public function.
However, it will probably be easier for the applicant to simply remedy the defect.
If there is an objection to the application, the registrar cannot complete the application until the objection has been disposed of. The Land Registry will encourage the disputing parties to negotiate and try to come to an agreement, but if an agreement is not possible, the dispute must be referred to the Property Division of the First Tier Tribunal, a specialist independent court for dealing with property disputes.
6. Must registrars or LR offices do their assessment within deadlines? If applicable, is it mandatory for registrars in charge or is it rather a guideline?
There are no deadlines or guidelines when it comes to disputes. In other applications, we try to dispose of cases as fast as reasonably possible and we have internal efficiency targets that are reviewed annually.
