Land Registration

England and Wales.—The first attempt to introduce general registration of conveyances appears to have been made by the Statute of Enrolments, passed in the 27th year of Henry VIII. But this was soon found to be capable of evasion, and it became a dead letter. A Registration Act applying to the counties of Lancaster, Chester and Durham was passed in Queen Elizabeth’s reign, but failed for want of providing the necessary machinery for its observance. The subject reappeared in several bills during the Commonwealth, but these failed to pass, owing, it would seem, to the objection of landowners to publicity. In 1669 a committee of the House of Lords reported that one cause of the depreciation of landed property was the uncertainty of titles, and proposed registration of deeds as a remedy, but nothing was done.

During the next thirty years numerous pamphlets for and against a general registry were published. In 1704 the first Deed Registry Act was passed, applying to the West Riding of Yorkshire. In 1707 the system was extended to the East Riding, and in 1708 to Middlesex. These Middlesex and Yorkshire registries (modified considerably in practice, but not seriously in principle, by the Yorkshire Registries Acts 1884, 1885, and Land Registry [Middlesex Deeds] Act 1891) remain in operation, and are greatly valued by the smaller proprietors and mortgagees, owing to the security against fraud which they provide at a trifling cost. The selection of these counties seems capricious: its probable explanation is that in them trade was flourishing, and the fortunes made were frequently invested in land, and a protection against secret encumbrances was most in demand. In 1728 and 1732 Surrey and Derby petitioned, unsuccessfully, for local registries. In 1735 the North Riding Deed Registry Act was passed. In 1739 a General Registry bill passed the Commons, but did not reach the Lords. Next year the Lords passed a similar bill, but it did not reach the Commons. In 1759 a General Registry bill was thrown out by a majority of one. In 1784 Northumberland unsuccessfully petitioned for a local registry. After this the subject went almost out of sight till the Real Property Commission of 1828. They reported in 1830 in favour of a general register of deeds, but though several bills were introduced, none were passed. In 1846 a committee of the House of Lords reported that the marketable value of real property was seriously diminished by the tedious and expensive process of the transfer of land, and that a registry of title to all real property was essential to the success of any attempt to simplify the system of conveyancing. In 1850 a Royal Commission reported in favour of a general register of deeds, and in 1851 Lord Campbell introduced a bill accordingly, but it was opposed, and was dropped. In 1853 Lord Cranworth introduced a bill, which passed the Lords but not the Commons.

Hitherto only registration of deeds had been considered, but in 1854 a new Royal Commission was appointed, which reported in 1857 in favour of a register of title. The scheme they recommended was substantially embodied in a bill introduced in 1859 by Lord Cairns—then Solicitor-General—but a dissolution stopped its progress. In 1862 Lord Westbury had the satisfaction of carrying the first act for registration of title. This act enabled any landowner to register an indefeasible title on production of strict proof. The proof required was to be such as the court of chancery would force an unwilling purchaser to accept. Only a few hundred titles were registered under this act, and in 1868 a Royal Commission was appointed to inquire into the causes of its failure. They reported in 1870, making various suggestions of detail, and especially adverting to the great expense caused by the strictness of the official investigation of title before a property could be admitted to the register. In the same year Lord Hatherley introduced a Transfer of Land Bill, but it was not proceeded with. In 1873 Lord Selborne introduced a Land Titles and Transfer Bill, following more or less the recommendations of the report of 1870, proposing for the first time compulsory registration of title upon every next sale after a prescribed date. Lord Cairns again introduced this bill (with some modifications) in 1874, but it had to be dropped. In 1875 Lord Cairns’s Land Transfer Act of that year was passed, which was much the same as the former bill, but without compulsion. This act had no better success in the way of voluntary general adoption than the act of 1862, but as its adoption has since been made compulsory, its provisions are important. Its most noticeable feature, from a practical point of view, is the additional prominence given to an expedient called “Possessory” registration (which also existed under another name in Lord Westbury’s Act), whereby is removed the great initial difficulty of placing titles on the register in the first instance. Two sorts of registration were established, “Absolute” and “Possessory.” The effect of an absolute registration was immediately to destroy all claims adverse to the registered title. But this was only to be granted on a regular investigation of title, which, though not so strict as under the former act, yet necessarily involved time and cost. Possessory registration, however, was to be granted to any one who could show a prima facie title—a quick and cheap process. But the effect of such registration would not be immediately felt. It would not destroy existing adverse claims. It would only prevent new difficulties from arising. In course of time such a title would be practically as good as an absolute one. In 1885 the duke of Marlborough introduced a bill for a registry of titles, and in the following vacation Lord Davey wrote three letters to The Times advocating the same thing on the general lines afterwards adopted.2 In 1887 Lord Halsbury, by introducing his Land Transfer Bill, commenced a struggle with the opponents of reform, which, after ten years of almost continuous effort, resulted in the passing of his act of 1897, establishing compulsory registration of title. Lord Halsbury introduced bills in 1887, 1888 and 1889. Lord Herschell, who succeeded him after the change of government, introduced bills in 1893, 1894 and 1895, these last three being unanimously passed by the House of Lords on every occasion. The bill of 1895 reached committee in the Commons, but was stopped by the dissolution of parliament. In 1897 Lord Halsbury (who had returned to the woolsack) again introduced the same bill with certain modifications which caused the Incorporated Law Society to withdraw its opposition in the House of Commons, and the act was finally passed on the last day of the session. Under it the Privy Council has power to issue orders declaring that on a certain date registration of title is to be compulsory on sale in a given district. The effect of such an order is to oblige every purchaser of land in the district after that date to register a “possessory title,” immediately after his purchase. The compulsory provisions of the act extend to freeholds and (by a rule afterwards made) to leaseholds having forty years to run. No order except the first can be made, save on the request of a county council. The first order was made in July 1898. It embraced the whole administrative county of London (including the City of London), proceeding gradually by groups of parishes. Under this order upwards of 122,000 titles had been registered by 1908, representing a value exceeding one hundred millions sterling.

Under the operation of this act, at the expense of a slightly increased cost on all transactions during a few years, persons dealing with land in the county will ultimately experience great relief in the matter both of cost and of delay. The costs of a sale (including professional assistance, if required) will ultimately be for the vendor about one-fifth, and for the purchaser (at the most usual values) less than half, of the present expenses. The delay will be no more than in dealings with stock. Mortgagees will also be protected from risks of fraud, which at present are very appreciable, and of which the Redgrave and Richards cases are recent examples. Further particulars of the practical operation of the acts will be found in the Registrar’s Reports of 1902 and 1906, embracing the period from 1899 to 1905 inclusive, with comments on the general position, suggestions for future legislation, &c. In the autumn of 1908 a Royal Commission under the chairmanship of Lord St Aldwyn, was appointed to inquire into the working of the Land Transfer Acts. The evidence given before them in October, November and December 1908 comprised a general exposition by the registrar of the origin and history of the acts, and the principles of their working, and suggestions for amendments in certain details. It also comprised the experience of several landowners and others, who had found the acts highly beneficial, and who had carried through a large number of dealings under absolute titles, without professional help, very quickly, and at a greatly reduced cost.

Scotland.—In Scotland registration of deeds was established by an act of 1617, which remained unaltered till 1845. There are also acts of 1868 and 1874. The registry is in Edinburgh. Deeds are registered almost invariably by full copy. The deeds are indexed according to properties—each property having a separate number and folio called a “search sheet,” on which all deeds affecting it are referred to. About 40,000 deeds are registered annually. The consequence of the existence of this register is to render fraud in title absolutely unknown. Forty years is the usual period investigated. The investigation can, if desired, be made from the records in the registry alone. The fees are trifling, but suffice to pay the expenses of the office, which employs between 70 and 80 permanent officers in addition to temporary assistants. The total costs of conveyancing amount, roughly speaking, to between 1 and 2% on the purchase money, and are equally shared between vendor and purchaser. In 1906 a royal commission was appointed, with Lord Dunedin as chairman, to inquire into the expediency of instituting in Scotland a system of registration of title.

Australia and New Zealand.—These states now furnish the most conspicuous examples in the British empire of the success of registration of title. But prior to the year 1857 they had only registration of deeds, and the expense, delay and confusion resulting from the frequent dealings appear to have been a crying evil. Sir Robert Torrens, then registrar of deeds in South Australia, drew up and carried an act establishing a register of title similar to the shipping register. The act rapidly became popular, and was adopted (with variations) in all the other Australasian states in the years 1861, 1862, 1870 and 1874. Consolidating and amending acts have since been passed in most of these states. Only absolute title is registered. All land granted by government, after the passing of the several acts, is placed on the register compulsorily. But voluntary applications are also made in very large numbers. It is said ordinary purchasers will not buy land unless the vendor first registers the title. The fees are very low—£1 to £3 is a usual maximum—though in some states, e.g. Victoria, the fees rise indefinitely, ad valorem, at a rate of about 10s. per £1000. Insurance funds are established to provide compensation for errors. At a recent date they amounted to over £400,000, while only £14,600 odd had been paid in claims. All the registries pay their own expenses. Bankers and men of business generally are warm in their appreciation of the acts, which are popularly called Torrens Acts, after their originator, who, though not a lawyer, originated and carried through this important and difficult legal work.

Canada.—Registration of title was introduced in Vancouver Island in 1861, was extended to the rest of British Columbia in 1870, and was in 1885 adopted by Ontario, Manitoba and the North-West Territories. Only Quebec, Nova Scotia, New Brunswick and Prince Edward Island retain the old English system, plus registration of deeds. The three provinces which have adopted registration of title have adopted it in somewhat different forms. In British Columbia it is similar to Lord Westbury’s Act of 1862. The North-West Territories follow closely the Torrens Acts. The Ontario Act is almost a transcript of Lord Cairns’s Act of 1875. The fees are very low, seldom exceeding a few shillings, but all expenses of the office are paid from this source. The Ontario registry has five district offices, as well as the central one at Toronto. This is apparently the only colonial registry not open to public inspection.

Other British Colonies.—In the other British colonies private investigation of title, plus registration of deeds, is the prevailing system, but registration of title has been introduced in one or two instances.

Germany and Austria-Hungary.—By far the most important examples of registration of title at present existing—because they show how the system works when applied to large European communities, with all the intricacies and complications of modern civilized life—are to be found in Germany and Austria-Hungary. In some parts of these countries registration of title has been established for several centuries—notably in Bohemia; in most parts it has existed for the greater part of the 19th century; in some districts, again, notably Tirol and the Rhine Provinces, it is still in course of introduction. In all cases it appears to have been preceded by a system of deed registration, which materially facilitated its introduction. In some cases, Prussia, for instance, the former registers were kept in such a way as to amount in themselves to little short of a registry of title. Very low scales of fees suffice to pay all official expenses. In Prussia the fees for registering sales begin at 5d. for a value of £1; at £20 the fee is 2s 7d.; at £100 it is 7s. 3d.; at £1000 it is £1, 10s.; at £5000, £4, 5s., and so on. In case of error, the officials are personally liable; failing these, the state. Other states are very similar. In 1894, 1,159,995 transactions were registered in Prussia. In 1893, 938,708 were registered in Austria. Some idea of the extent to which small holdings prevail in these countries may be gathered from the fact that 36% of the sales and mortgages in Austria were for under £8, 6s. 8d. value—74% were for under £50. Owing to the ease and simplicity of the registers, it is not always necessary to employ professional help. When such help is required, the fees are low. In Vienna £1 is a very usual fee for the purchaser’s lawyer. £10 is seldom reached. In Germany the register is private. In Austria it is open to public inspection. In these registers may be found examples of large estates in the country with numerous charges and encumbrances and dealings therewith; peasants’ properties, in numerous scattered parcels, acquired and disposed of at different times, and variously mortgaged; town and suburban properties, flats, small farms, rights to light and air, rights of way, family settlements, and dealings of all sorts—inheritances and wills, partitions, bankruptcies, mortgages, and a great variety of dealings therewith. The Continental systems are usually administered locally in districts, about 20 to 30 m. across, attached to the local law courts. In Baden and Württemberg every parish (commune) has its own registry. All ordinary dealings are transacted with the greatest expedition. Security is absolute.3

The United States.—Up to a late date the ordinary English system, with registration of deeds, was universal in the United States. The registries appear to go back practically to the original settlement of the country. Registration is by full copy. It is said that in the large towns the name indexes were often much overgrown owing to the want of subdivision into smaller areas corresponding to the parishes into which the Middlesex and Yorkshire indexes are divided. In the New York registry not many years ago 25,000 deeds were registered annually. At the same time 35,000 were registered in Middlesex. Complaints are made by American lawyers of want of accuracy in the indexes also. In 1890 an act was passed in New York for splitting the indexes into “blocks,” which is believed to have given much relief. The average time and cost of an examination of title, as estimated by a committee of the Bar Association of New York in 1887, was about thirty days and 150 dollars (about £30). A later State Commission in Illinois estimates the law costs of a sale there at about 25 dollars (£5); the time may run into many months. Allusion has already been made to the insurance of title companies. The rates of insurance are substantial, e.g. 65 dollars (£13) on the first 3000 dollars (£600), and 5 dollars (£1) on each additional 1000 dollars (£200). This would amount to £20 on £2000 value, £110 on £20,000, £510 on £100,000. The guarantee given is very ample, and may be renewed to subsequent owners at one-third of the fee. Registration of title has lately been introduced, on a voluntary basis, into the states of California, Oregon, Illinois, Massachusetts, Minnesota and Colorado, and also into Hawaii and the Philippines.

France.—In France registration of deeds is universal. Sales, mortgages, gifts and successions; easements, leases of over eighteen years, and transactions affecting the land to the extent of three years’ rent may lose priority if not registered. Wills need not be registered. Mortgages must be re-registered every ten years. Purchase deeds are registered by filing full copies. Registries are established in all the considerable towns. The duty on sales amounts to the high figure of about 6½% on the value. Part of this is allocated to registration, in addition to which a fixed fee of one franc, and stationers’ charges averaging 6 francs are also chargeable. The title can usually be fully investigated from the documents in the registry. Official searches for mortgages are commonly resorted to, at a cost of about 5 francs. Under the monarchy the land system was practically copyhold tenure, but greater validity was attached to the Court Rolls than was the case in England. The present system was established by a law of 1790 after the abolition of seigniorial institutions in 1789. This was modified by the Code Napoleon, and further perfected by a law of 1855. The average value of transactions in France is very small. Probably at the present time four-fifths of the properties are of under £25 value. The costs of a sale for 200 francs (£8) would be about as follows: Duty, 13 fr.; Notary (1%), 2 fr.; expenses, 12 fr.—total 27 fr. A sale for 1000 fr. (£40) would cost about 110 fr. Taking all values, the cost of conveyance and duty reaches the high figure of 10% in the general run of transactions. The vendor as a rule has no costs. Indefeasible title is not obtainable, but frauds are almost unknown. A day or two usually suffices for all formalities. On large sales a further process known as the “purge” is undergone, which requires a few weeks and more expense, in order to guard against possible claims against which the deed registries afford no protection, such as dowries of wives, claims under guardianships, &c. A commission (Commission Extraparlementaire du Cadastre), appointed in 1891 to consider the revision of the government cadastral maps (which are in very serious arrear) and the establishment of registration of title, collected, in nine volumes of Comptes Rendus, a great mass of most interesting particulars relating to land questions in France, and in 1905 reported in favour of the general establishment of a register of title, with a draft of the necessary enactment.

Authorities.—A very complete list of some 114 English publications from 1653 to 1895 will be found in R. Burnet Morris, Land Registration (1895); Parliamentary Publications: Second Report of the Real Property Commissioners (1831); Report of the Registration and Conveyancing Commission (1850); Report of the Registration of Title Commission (1857); Report of the Land Transfer Commission (1870); Reports on Registration of Title in Australasian Colonies (1871 and 1881); Report on Registration of Title in Germany and Austria-Hungary (1896); The Registrar’s Reports of 1902 and 1906 on the Formation of a Register in London; Royal Commission on the Land Transfer Acts, Minutes of Evidence (1909). General reviews of land registration in the British Isles, the Colonies, and in foreign countries: R. Burnet Morris, as above, and C. F. Brickdale, Land Transfer in Various Countries (1894). Books on practice: England—Brickdale and Sheldon, The Land Transfer Acts (2nd ed., 1905); Cherry and Marigold, The Land Transfer Acts (1898); Hay, Land Registration under the Land Transfer Acts (1904); Land Transfer, &c. (1901); C. F. Brickdale, Registration in Middlesex (1892). Australia—The Australian Torrens System; Hogg, The Transfer of Land Act 1890 (Melbourne). Prussia—Oberneck, Die Preussischen Grundbuchgesetze (Berlin). Austria—Das allgemeine Grundbuchsgesetz, &c. (Vienna); Bartsch, Das Oesterreichische allgemeine Grundbuchsgesetz in seiner practischen Anwendung (Vienna). Saxony—Siegmann, Sächsische Hypothekenrecht (Leipzig). Statistics—Oesterreichische Statistik (Grundbuchs-ämter) (Vienna, annually).