102

UNREGISTERED LAND

contract. Also in the period between exchange and completion, the purchaser will search
the land charges register to discover whether any land charges registered under the LCA
1972 are binding on the land. The obvious problem with this is that purchaser is already
committed to buying the property before he searches the land charges register.25 This is
discussed below.

3.4

Third-party Rights in Unregistered Land

It is inherent in what has been said already about the 1925 reforms, that one important
aim was to bring certainty and stability to the status of third-party rights in land. There are
two reasons for this, the fundamental importance of which bears repetition.
1

A purchaser of land needs to know with as much certainty as possible whether any
other person has enforceable rights over the land, and the extent and nature of those
rights.
The owner of those rights needs to be sure that his rights are protected when the
land over which they operate is sold or otherwise disposed of.

It is, then, in everybodys interest to have a workable conveyancing system wherein

there is a balance between potential purchaser and third-party right-holder, and which
is so uniform in its operation as to allow accurate predictions of what will happen to
third-party rights in the majority of real-life situations. Unfortunately, the system of
unregistered conveyancing does not achieve these goals to the extent necessary to pronounce it a success. Of course, it does work or, rather, it is made to work but there
is no doubt that the system of unregistered conveyancing adopted with eect from
1 January 1926 has not stood the test of time. There are few who will be sorry to see
it disappear.
Before examining in detail how third-party rights are regulated in unregistered land,
three preliminary points of crucial importance should be noted. First, we are about to
consider whether a person who obtains title to unregistered land, over which an adverse
third-party interest already exists, is bound by that interest (e.g. a right of way): in other
words, does the third-party interest survive a transfer of the land? This may depend on
both the nature of the third-party interest and/or the status of the new owner. Second, in
all cases, it is vital to know whether the third-party right is legal or equitable. This will,
in turn, depend both on the denition of legal interests contained in section 1 of the LPA
1925 and the way in which the interest originally came into existence. Hence, an easement
may be legal or equitable (section 1 of the LPA 1925) and everything will depend on
how it came into being. Conversely, the burden of a restrictive covenant can only ever be
equitable, irrespective of how it is created (section 1 of the LPA 1925). A knowledge of
the distinction between legal and equitable rights is vital if the system of unregistered
conveyancing is to be understood properly. Third, if it should prove the case that a thirdparty right is not binding on a new owner of the unregistered land, the right may still be
enforceable between the parties that created the right. For example, in Barclays Bank v. Buhr

25 It is only after exchange of contracts that the purchaser receives the abstract of title and only then that the names of
previous estate owners against which to search are revealed.