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Non-assessed - Julian Farrand has commented that the mirror principle of…

- - - - Evidence
        
        There was a reduction in the number of overriding interests following the introduction of the LRA 2002 but they were not completely removed.
        
        'In the Consultative Document, we considered whether certain rights should lose their overriding status.280 Where such rights existed in significant numbers, we had reservations about so doing.'
        
        'First, many such persons would not appreciate the need to register their rights'
        
        'Thirdly, failure to register carries with it the risk that the right might be lost. This would occur if the land affected by it was sold to a purchaser, who would necessarily take free of it as an unprotected minor interest. ...this might be regarded as tantamount to expropriation.'
        
        Secondly, the removal of overriding status without compensation carried with it some risk of contravening Article 1 of the First Protocol of the European Convention on Human Rights.
        
        http://www.lawcom.gov.uk/app/uploads/2015/04/Lc271.pdf - page 175
        
        We have given careful thought to the categories of overriding interests that should be phased out. In particular, we have had regard to our guiding principle that interests should only have overriding status where protection against buyers is needed, but where it is neither reasonable to expect nor sensible to require any entry on the register.
        
        http://www.lawcom.gov.uk/app/uploads/2015/04/Lc271.pdf - page 178
        
        The Law commission in the run up to the 2002 LRA one of the things that they consulted on was the complete removal of overriding interests. Overriding interests had caused problems under the LRA 1925 Act and when that was being redrafted one of the serious proposes was that s70 LRA 1925 effectively be removed and these interests which override the need for registration in order to retain their priority would effectively be done away with. However, LC recommended that although the categories of overriding interests ought to be vastly slimmed down to make the purchase of land easier and less tricky for purchasers so they would not have to acquire about so many things that could exist off registered. They deemed that removing them all would be unfair. They left some residual interests which could override the need for registration in order to retain their priority under 2002 Act but in a vastly slimmed down form.
        
        Furthermore, the inclusion of overriding interests within the LRA 2002 was deliberate as they are a balancing act between purchasers interests and third party interests.
      - Point 2
        
        Evaluation
        
        Evidence
        
        These two principles lie at the heart of the LRA 2002. Purchaser protection is
        provided in the LRA 2002 through the priority regime found in section 29
        
        http://www.lawcom.gov.uk/app/uploads/2016/03/cp227_land_registration_web.pdf para 16.26
        
        accidental inclusion of having to comply with ECHR
        
        Evaluative Point
        
        Evidence
        
        The mirror is not cracked because
        
        We see in these cases the court acknowledging the existence of s.58(1) and its effects. Under the 2002 Act if we have the same position where the transferor whose name appears as the legal proprietor of registered land makes a transfer to a transferee. Transferee takes the title. If a problem comes to light such as an original owner comes forward and says that they were the person who held the legal title, and they were defrauded and that the person whose name appears on the register got their name on the register by mistake or fraud. They do not deserve to be recognised as the legal title holder and they want their land back. Unfortunately, under the 2002 act the system prefers the transferee. If the transferee takes without any knowledge of the problem, they can rely utterly on the person who is named as legal proprietor being the owner of the legal estate and being able to transfer legal title to them and in that situation under the 2002 Act we see that the way which the court deals with the situation is to compensate the original deserving person who was defrauded. Transferee gets title to the land.
        
        Walker v Burton [2013] EWCA Civ 1228
        
        Parshall v Hackney [2013] EWCA Civ 240, [2013] 77 Conv 222
        
        s.58(1) LRA 2002 is very important because it reflects a pretty massive change to the understanding of what the land register is all about. Arguably the mirror principle does not apply, the land register is the new reality and because s.58(1) says that the registered proprietor is whoever’s name appears on the land register as the legal title holder irrespective of whether it is deserved, the register is the new reality. The registered proprietor under s.23 has all the rights of a legal owner, s.24 says that they can do what they like with it, s.26 says the disponee is protected and they can rely on the fact the legal owner can do these things.
        
        Counter-argument
        
        Evidence
        
        The mirror is cracked because of the possibility of alteration.
        
        Rectification is the process of altering the Land Register in a way which may affect a registered proprietor [10] . Alteration of the register is needed in order to update the register when land is transferred or encumbered. In a now increasingly electronic system of registration, mistakes by man and machine are expected. If there were no system to rectify these mistakes it could seemingly make the LRA worthless, creating another large ‘crack in the mirror’. In order to strike a balance between correcting genuine mistakes and fraudulent attempts to change the register, the methods and occasions in which it is possible to alter the register are restricted, and listed in Schedule 4 of the LRA 2002. It was argued in Sainsbury’s Supermarkets v Olympia Homes Ltd [11] whether in some situations the law was being sidestepped through rectification [12] . It should be asked whether rectification should be allowed to enhance a proprietor’s position while causing detriment to another if both parties were at fault.
        
        The principle objective of the Land Registration Act 2002 (‘the LRA 2002’) is that the Register should be a complete and accurate reflection of the state of the title to land, at any given time, so that it is possible to investigate title to land online with the absolute minimum of additional enquiries and inspections.[1] To help facilitate this objective, the LRA 2002 ushered in a shift from registration of title to title by registration.[2] The act of registration, therefore, confers title to a legal estate[3] and Section 58 of the LRA 2002 provides that a person shall be deemed to be the proprietor of the legal estate, by virtue of being registered as such, even if the legal estate would not otherwise be vested in him. Pursuant to this, although his title will be vulnerable to an application to alter the Register, a person who has obtained title, for example, by fraud will (as registered proprietor) have the right to exercise “owner’s powers” including the power to make a disposition.[4]
        
        Although at first blush this may seem surprising, as a fraudulent disposition would be a nullity, the reasoning behind Section 58 of the LRA 2002 is that there is a utilitarian benefit in the Register being conclusive, in that it is supposed to be an accurate reflection of the state of title to land at any given time and, as such, it avoids the need for the title to be investigated on each conveyance (“the mirror principle”).
        
        1 more item...
        
        https://guildfordchambers.com/rectification-of-the-land-register/#_ftnref1
        
        The second is what are known as overriding interests. These are interests which override the need for registration in order to retain their priority. The registered proprietor is subject to them even though they are not formally entered into the register they still bind. Even an absolute title takes subject to them. When looking at the land register it is utterly conclusive as to who the legal title holder following s.58(1) LRA 2002. But when it comes to understanding the full nature of their ownership the register is only partially correct and was only ever intended to be partially correct. The details on the register are subject to alteration following s.21 LRA and they are also subject to interests which don’t need to be on the register to retain their priority over the legal title holder.
        
        The LRA 2002, s.21 provides that the register can be altered in certain circumstances, including where any entry has been obtained by fraud or mistake. S.21 LRA 2002 provides that the register can be altered in certain circumstances, for example where an entry has been obtained by mistake or fraud. The person who has been defrauded can apply to the land registry with the required evidence to have the register altered. The process for alternation by the land registrar are laid out in Schedule 4 LRA 2002.
        
        However, in reality the mirror is still cracked, However, this has always been intended.
        
        Alternatively it could be misconstrued that the mirror is not cracked.
        
        The LRA 2002 has not gone far in addressing Farrand's criticisms because these cracks were always intended
        
        Evidence
        
        These two principles lie at the heart of the LRA 2002. Purchaser protection is provided in the LRA 2002 through the priority regime found in section 29.37 Overriding interests are an exception carved out of the rule in that section that interests which are not protected on the register will be postponed when there is a registrable disposition for valuable consideration. The overriding interests found in schedule 3 to the LRA 2002 exemplify situations where it would be neither reasonable nor sensible to require registration.38
        
        http://www.lawcom.gov.uk/app/uploads/2016/03/cp227_land_registration_web.pdf para 16.26
        
        In our examples, the purchaser B and the bank E will be aware of the risks of overriding interests and will take steps to try and ensure that they know of any property rights X or D have. The case law demonstrates however that the existence of overriding interests will not always be discovered. 63 Land law rules are not designed to ensure either that purchasers and mortgagees always take free from (or are aware of the existence of) rights affecting land, or to ensure that property rights are always binding against purchasers and lenders. The rules seek to provide an appropriate balance between the interests of the parties.
        
        http://www.lawcom.gov.uk/app/uploads/2016/03/cp227_land_registration_web.pdf para 2.68
        
        s.29(1) says that once the disposition has been registered the priority of interest is determined by the interest whose priority was protected on the register immediately before the registration event, before the disposition. If an interest does not have its priority protected on the register at the date that the subsequent disposition is registered it then loses its priority. This means that the registration event, registration of dispositions, transfers, or the creation of new rights is important because they are only affected by interests which were protected on the land register at the date that the transaction, disposition was recorded on the register.
        
        When looking at the priority of interests and you are saying that an interest which falls under schedule 3 is overriding. You effectively need to be arguing that under s.29(2)(a)(ii) LRA 2002 that the priority of that interest is protected because it falls under schedule 3. The priority is maintained by s.29(2)(a)(ii) LRA 2002 that even though the interest is not protected by notice on the register nonetheless it will retain its priority through the disposition, or through the transaction.
        
        s.29(2)(a)(i) says that interests already protected by notice or charge on the register retain their priority.
        
        s.29(2)(a)(ii) says that interests which fall under schedule 3 maintain their priority through transactions too. Overriding interests.
        
        Our proposals for reform are informed by two competing, but critical, principles: purchaser protection and reasonableness of registration. On the one hand, registration of easements enables buyers to determine the extent of any burdens or competing interests affecting the land they are seeking to acquire. On the other hand, it is not always reasonable to expect interest holders to register their interests. Interests in land can, for example, be transient; in such cases the benefits of registration are minimal but the burdens to the interest holder are great.
        
        http://www.lawcom.gov.uk/app/uploads/2016/03/cp227_land_registration_web.pdf para 16.25
        
        Furthermore, the inclusion of overriding interests within the LRA 2002 was deliberate as they are a balancing act between purchasers interests and third party interests.
        
        maybe the cracks are needed to maintain an efficient registration rather than being over run with rights
        
        The original idea behind overriding interests was that, whilst the register should effectively indicate who owned the legal title and carry most of the information that a purchaser would want to know and be a substitute for the title deeds in unregistered land, it was not intended to relieve the expectation that a purchaser would need to make inquiries and make physical inspections of the land to actually see what was going on. This may have been the intention, but it is not wholly correct. Many of the rights that comprise overriding interests under Schedules 1 and 3 are interests which might arise informally or in circumstances where the person with the benefit of them may not necessarily understand that they would require some form of registration in order to protect them. These were interests which were important to third parties and the law did not want to automatically strip them from people because of failure to register. Many of the rights that comprise overriding interests are legal rights, so their existence might seem to reflect the unregistered land position, where legal estates and interests bind the world regardless of notice. But the registered land system itself is based on whether an interest is an interest protected by an entry on the register or takes effect as an overriding interest.
      - Evaluation
        
        Evidence
        
        First, many such persons would not appreciate the need to register their rights (though this difficulty could be minimised by consultation and publicity).
        
        http://www.lawcom.gov.uk/app/uploads/2015/04/Lc271.pdf - page 175
        
        The cracks were not intended
        
        to be a long term thing
        
        We are satisfied that our proposals will comply with the requirements of Article 1 of the First Protocol of the European Convention on Human Rights.308 First, there can be little doubt that the phasing out of overriding status over a period of 10 years with a view to encouraging the registration of such rights instead constitutes a “control” and not a “deprivation” of property rights. The removal of overriding status has no effect per se on the rights themselves. Secondly, a requirement for securing the registration of such rights of an unusual character is obviously a legitimate aim for a state to pursue and is “in accordance with the general interest” as that Article requires. Indeed, the Court of Human Rights has recently reiterated the need for rules of domestic law to be “sufficiently accessible, precise and foreseeable” in the context of the protection of possessions.309 Thirdly, what is proposed is undoubtedly proportionate in terms of the end desired and the means to achieve it. The period of 10 years is generous. It gives more than adequate time both to publicise the need to register such rights and for those who have the benefit of them to ensure that they are registered. Furthermore, no fee is to be charged for the entry of such rights on either the register or the cautions register
        
        http://www.lawcom.gov.uk/app/uploads/2015/04/Lc271.pdf para 8.89
      - The LRA 2002 has not gone far in addressing Farrand's criticisms because these cracks were always intended.