University of Guyana - Department of Law

Law of Real Property

USI: 1021066

Lecturer: Dr. Valerie Leung

Date: October 27th, 2017

Table of Cases Error! Bookmark not defined.

1.0 Introduction - History & Definition 3

2.0 Creation of Title by Deed and Title by Registration 4

2.1 Unregistered land: 4

2.2 Registered land: 4

3.0 Differences between the two 5

4.0 Benefits of registration Error! Bookmark not defined.

5.0 Estates and interests which can be registered 7

5.1 Estates that can be registered 7

5.2 Interests that can be registered 8

6.0 Overriding interests 9

6.1 Overriding Interests in Unregistered Land 9

6.2 Overriding Interests in Registered Land 10

7.0 Notice 10

7.1 Notice in Unregistered Land 10

7.2 Notice in Registered Land 11

8.0 Rectification 11

9.0 Fraud 12

9.1 Fraud in Registered Land 12

9.2 Fraud in Unregistered Land 13

Bibliography Error! Bookmark not defined.

1
Table of Statutes
Guyana Land Registry Act, 1959

Guyana Land Registry Act, 1998

Jamaica Registration of Titles Act, 1889

United Kingdom Land Registration Act, 1862

Table of Cases
Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2

Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17

Hunt v. Luck [1901] 1 Ch 45

Lloyd v. Banks (1867 - 68) LR 3 Ch App 488

Northern Counties Fire Insurance Co v Whipp [1884] CA

Table of Abbreviations

LRA Guyana - Land Registry Act Guyana

LRA UK - Land Registration Act United Kingdom

2
1.0 Introduction - History & Definition

This paper seeks to analyse and compare the two systems of registration of property which are as follows:

1. Registration by Deed. If property has been registered via deed (a written agreement, signed,

sealed, and delivered, by which one person conveys land, tenements, or hereditaments to

another1) then it is considered Unregistered Title;

2. Registration by Title. This system records the Title itself in a state register and provides the title-

holder State guaranteed title to his property. This is considered Registered Title.2

Historically, all land in the United Kingdom and it’s colonies were unregistered as all land was held by

the crown. The initial mode of transferring freehold land was by livery of seisin, that is the public transfer

of the land by the vendor to the purchaser, usually involving handing over a piece of turf in the presence

of witnesses. This form of conveyance lost favour after the Statute of Uses (1535) allowed conveyance by

deed. Conveyancers would write deeds transferring property from one owner to the other which would

form part of the chain of ownership and recite the purchase price, the parties, any conditions or covenants

on the land and all rights the deed holder had over the land. However, the system tended to produce

inequitable outcomes, as such, many calls to reform what Oliver Cromwell called “an ungodly mess”

were made. Registration of deeds bills were introduced but talked out of parliament by the opposition of

the judiciary in 1653 and 1656. 3

The pressure for reform continued in the 19th century. The Real Property Commissioners Report of 1830

was in favour of a general deeds registry, but the idea of a registry of titles rather than deeds was revived

by London solicitor Mr J G Fonnerau supported by the success of the Merchant Shipping Act 1854.

Simultaneously, in Southern Australia, there was a boom in land speculation. This, along with the

1
Judith-Anne MacKenzie, Mary Phillips, Textbook on Land Law, (Oxford University Press, 2002)
2
Ibid
3
Short History of Land Registration in England and Wales, (Land Registry, 2000)

3
haphazard grant system in place, resulted in over 75% of the land grants issued in South Australia being

lost prompting Robert Torrens to propose a new title system in 1858. His system, which was based

partially on the system of registration of ships in the United Kingdom, instituted a central registry of all

the land in South Australia and was adopted by the Real Property Act 1886 (SA). All transfers of land,

easements, mortgages and most other interests were to be recorded in the register. 4

This system was adopted by the UK in 18625. Jamaica became the first Caribbean nation to adopt this

practice in 18896 and still leads the region in the system. Guyana partially adopted the system in 19597,

but it has not been entirely implemented.

2.0 Creation of Title by Deed and Title by Registration

2.1 Unregistered land:

Title is deduced from a ‘good root of title’ which records a dealing with the whole legal and equitable

interest in the land. Once a good root of title has been established, the vendor produces every deed after

the root of title which has affected the property to establish that he has a prima facie unencumbered title.

Since title is recorded in a deed along with some rights and interests of third parties, title is created and

transferred when the contract is signed and the deed is transferred.8

2.2 Registered land:

According to Article 32 of the Land Registry Act, Guyana, “ upon receipt of any declaration of title the

Registrar shall register the title of the person named in the declaration as proprietor of the land”. Included

4
Ibid
5
United Kingdom Land Registration Act, 1862
6
Jamaica Registration of Titles Act, 1889
7
Guyana Land Registry Act, 1959
8
Kevin Gray, Susan Francis Gray, Land Law (Oxford University Press, 2009)

4
in the act are provisions for acquisition by inheritance, purchase and adverse possession. Therefore, title is

only created and transferred after the title is registered in the state registry and is considered as being

registered from the moment an application to register is [Link], all applications must first be

publicized in the Gazette and a local newspaper to allow for dispute.9

A title may also be created by adverse possession as governed by Article 105-10910. As a result of this or

other claims to title, there can be a Conflicting Title where a person claims to have title over a property

where a Prior Title exists. The Prior Title prevails over a Conflicting Title except –

“(a) where the conflicting title was registered pursuant to a declaration of title made by the Court or by

the Commissioner; or

(b) where the holder of the conflicting title or any person under or through whom he derived that title has

been in actual possession of the land adverse to the holder of the prior title for twelve years or more; or

(c) where any holder of the prior title is proved to have had actual notice of the intended or actual

registration of the conflicting title and to have taken no steps to prevent the registration thereof or within

one year of such notice to have the registration thereof cancelled; or

(d) where the Court is of the opinion that it would cause undue hardship for the registration of the prior

title to prevail,”11

3.0 Differences between the two

As seen above, the fundamental distinction between unregistered and registered land is that the basis of

title to unregistered land is possession of deed, whereas the basis of registered title is the fact of

registration. In addition to these, there are the following distinctions between the two systems:

9
Guyana Land Registry Act 1998, S 23

10
Guyana Land Registry Act 1998
11
Guyana Land Registry Act 1998, S 65 (2)

5
 ❏ In the Torrens System, title is indefeasible and state-guaranteed, however, when dealing with

unregistered titles in land the maxim caveat emptor holds great significance.

❏ The list of Overriding interests in Unregistered Land is greater and less restrictively defined than

in Registered Land

❏ Fraud is more easily and completely effected in Unregistered land as deeds can be forged or

modified, whereas in Registered land, all forgery will be conducted in a situation in which a State

Agency may more easily discover it.

❏ The doctrine of notice is of great importance in Unregistered Land, whereas it is irrelevant in

Registered Land.

❏ Registered land allows for State Rectification.

4.0 Benefits of registration

Registering land in the Registry of Title has various benefits, such as the following12:

1. Registered land is governed by the Mirror Principle and the Insurance principle. The former

ensures that the due registration of a title must reflect all the important and significant details that a

purchaser must know before buying the land. It gives:

(a) the name of the current owner,

(b) the location and description of the property,

(c) restrictive covenants,

(d) easements,

(e) outstanding mortgages, charges or

(f) caveats that affect the property.

The latter principle ensures official, state-guaranteed record of ownership of and interests in the

National Land Agency of Jamaica, “Advantages of having a regisered title”

<[Link] accessed October 27th, 2017

6
 land. This results in greater security in ownership of or rights over the land, allowing disputes to

be resolved more easily. The state guarantee provides “insurance”

2. Once registered each title is given an official plan of the land. This can be used to prevent any

encroachment on the boundaries.

3. If a registered owner wants to sells his property, he only need to show the prospective buyer the

Registered Title. There is no need to provide a ‘good root of title’ and the buyer does not have to

peruse a host of complex legal documents proving ownership.

4. Buyers and lending institutions can rely on Certificate of Title prima facie and can protect

themselves by making an official search of the register and requesting a Search Certificate due to

the doctrine of insurance.

5. It reduces the frequency of fraud in the form of forged deeds.

5.0 Estates and interests which can be registered

5.1 Estates that can be registered

All freehold estates can be registered13, however only the following leasehold estates can be registered:

● Leases with more than three years to run14

OR

● Leases with less than three years to run, however, such a lease shall still be in full force if not

registered15

13
Guyana Land Registry Act 1998, S 32
14
Guyana Land Registry Act 1998, S 89(1)
15
Guyana Land Registry Act 1998, S 89(2)

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5.2 Interests that can be registered

The LRA provides for interests in Registered Land. LRA Cap 5:02 Sec. 54 (1) regulates the entry of

interests in that “” [t]he Registrar shall enter upon the register of each parcel a memorial of (a) all

subsisting interests to which that parcel is subject at the time when it is brought under the operation of this

Act in such manner as to preserve the priorities thereof; (b) every instrument dealing or other matter

affecting that parcel which is required by this Act to be registered.”

This includes the following:

● Any mortgage16

● Leases under 3 years17; and

● Any easements or restrictive covenants 18

These instruments are typically prioritized according to the order in which they are presented for

registration and not according to the date of each instrument itself.19

The title of every registered proprietor shall be absolute and indefeasible and shall not be affected in any

way by the existence in any other person of any interest which, but for the Act, might be held to have

priority except by reason of any informality or irregularity in the application or proceedings for

registration or in the case of fraud; misdescription of boundaries (unless such proprietor is a bona fide

16
Guyana Land Registry Act 1998, S 80

17
Guyana Land Registry Act 1998, S 89

18
Guyana Land Registry Act 1998, S 66

19
Guyana Land Registry Act 1998, S. 57 (2)

8
purchaser for value, or derived title from or through such a purchaser); or as otherwise specified in the

register or provided in this Act (as in the case of overriding interests).20 21

6.0 Overriding interests

Megarry and Wade’s statement that "[t]he dilemma of English land law is how to reconcile security of

title with ease of transfer” is particularly relevant when considering third-party interests in land. Holders

of these rights want them to be protected, whereas the purchaser wants to take free of them. The LRA

(Guyana) provided certainty by simplifying and codifying the existing law and introduced new systems of

landholding which offered protection to both the purchaser and the owner of third-party rights. However,

not all equitable interests are required to be registered in the register or on the deed. These are considered

overriding interests.

6.1 Overriding Interests in Unregistered Land

A buyer in good faith and for value of a legal interest in unregistered land is bound by:

● Land charges such as a puisne mortgage, inheritance or property taxes, a contract to transfer a

legal interest in land, a restrictive covenant, an equitable easement, a right of occupation in the

family home due to civil partnership or marriage. 22

● Local land charges23

● Interests of which the purchaser has notice that is either:

I. actual24

20
Guyana Land Registry Act 1998, S 65 (1)

21
Guyana Land Registry Act 1998, S 66 (a)

22
Mark Davys, Palgrave Macmillan, Land Law (3 Apr 2015) p. 283
23
Ibid

9
 II. constructive25

III. imputed – the same actual notice or constructive notice as his professional advisors.26

6.2 Overriding Interests in Registered Land

Overriding interests in registered land in Guyana include leases under 3 years27, easements and public

rights of way28, a right to unpaid rates, taxes, or other moneys reserved to the Crown29 and mortgages30

and affect a title even though they are not protected on the register.

7.0 Notice

7.1 Notice in Unregistered Land

Strictly speaking, the doctrine of Notice is relevant only in Unregistered Land to determine the priority of

equitable interests not governed by the Land Charges Act in the UK. Under the doctrine of notice, a

bona fide purchaser of a legal estate for value takes priority over any pre-existing equitable interest which

is not registrable as a land charge, provided they did not have actual, constructive or imputed notice of its

existence.

24
Lloyd v. Banks (1867 - 68) LR 3 Ch App 488
25
Hunt v. Luck [1901] 1 Ch 45
26
Davys (n 20), p. 283
27
Guyana Land Registry Act 1998, S 89

28
Guyana Land Registry Act 1998, s 66 (b)
29
Guyana Land Registry Act 1998, S 66 (c)

30
Guyana Land Registry Act 1998, S 77 (2)

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7.2 Notice in Registered Land

The doctrine of notice has no application in registered land where priority is determined by a separate

regime including overriding and minor interests. Many third-party rights will bind the purchaser whether

he knows of them or not, but there are still some other rights which will not bind him if he can show that

he has not discovered them despite making all the right enquiries. However, there is a system of

registering certain encumbrances as caveats to be discovered by searching the register. This is governed

by Section 125 of the LRA Guyana. This provides that any person claiming any interest in any registered

land may lodge a caveat to be verified by a statutory declaration. “(3) Upon lodgment of any caveat, the

Registrar shall enter a memorial and give notice thereof to the registered proprietor of the land affected

thereby….(4) A caveat may be removed from the register with the consent of the caveator or by order of

the Court….(6) If an instrument is presented for registration which purports or appears to affect any

registered interest which is protected by a caveat, the Registrar shall give notice thereof to the caveator

and shall suspend registration of such instrument for six weeks from the date of such notice. At the

expiration of such period, unless the caveator has registered the instrument, if any, under which he claims

or has commenced proceedings before the Court to enforce his claim, the caveat shall lapse and the

instrument first mentioned shall be registered as at the date of presentation.”

8.0 Rectification

A rectification a remedy to correct an inaccurate written record of an agreement. According to the

Black’s Law Dictionary, To rectify is to correct or define something which is erroneous or doubtful. Thus,

where the parties to an agreement have determined to embody its terms in the appropriate and conclusive

form, but the instrument meant to effect this purpose (e. g., a conveyance, settlement, etc.) is, by mutual

mistake, so framed as not to express the real intention of the parties, an action may be brought in the court

11
to have it rectified.31 This is governed by S 49, 60 of the LRA which allow persons to make applications

for a rectification. An indemnity is a financial compensation from any loss suffered as a result of a

rectification.32 S 128 and 131 of the LRA Guyana allow any person suffering loss as a result of the

rectification to recover compensation from the fund to the value of the land immediately before the time

of rectification.

9.0 Fraud

9.1 Fraud in Registered Land

Fraud in this system is usually effected by forgery of signature. The consequences of fraud may vary with

the circumstances although Section 155 of the LRA lists fraud as an indictable offence.

Firstly, in the case where a fraudster forges the registered proprietor’s signature and becomes registered,

the defrauded proprietor will be restored to the register.

Secondly, where the mortgagor’s signature is forged, the registered mortgage will be set aside, however,

where the registered proprietor has actually has actually signed a mortgage (there being no fraud), but the

mortgagee has (personally or through an employee or agent) falsely attested to being present when the

mortgage signed, then the fraud will deprive the mortgagee of the benefit of registration but it will not

vitiate the loan agreement between mortgagor and mortgagee as in Hickey v Powershift Tractors Pty Ltd33

31
Bryan A. Garner, Black’s law dictionary (10th Edition)

32
Judith-Anne MacKenzie, Mary Phillips, Textbook on Land Law, (Oxford University Press, 2002)

33
(2013) 305 ALR 612

12
There are several categories of fraud: False Attestation of Forged Signature (De Jager [1984]), Alteration

after Execution, Lodgement of Forged and Falsely Attested Instrument for Registration, False Attestation

of Otherwise Valid Instrument and Attestation of Signature of Imposter.34

In a case where a party with an interest was involved in defrauding another interest-holder to benefit from

this interest-holder, that party will have their interest made secondary to the interest of the defrauded

party. Generally speaking, fraud vitiates the title or interest of the party involved in committing the fraud,

however, a third party who is a bona fide purchaser acting in good faith on the interest or title obtained

fraudulently may be able to retain their interest or title as per Cassegrain v Gerard Cassegrain & Co Pty

Ltd35.

9.2 Fraud in Unregistered Land

Fraud in this system can be effected by forgery of Deed, fraudulent modifying of Deed or forgery of

signature or taking of a legal estate when you had notice of a prior right. Generally speaking, fraud

vitiates or postpones the title or interest of the party involved in committing the fraud. However, equity’s

darling may apply where, a purchaser that has acted in good faith to be a bona fide purchaser may have

good title even in the circumstances of fraud.36

34
The University of Western Australia, Monash University Law Review (Vol 40, No 3)
35
[2015] HCA 2
36
Northern Counties Fire Insurance Co v Whipp [1884] CA

13
Bibliography

A Short History of Land Registration in England and Wales, (Land Registry, 2000)

Garner B.A., Black’s law dictionary (10th Edition)

Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2

Davys M, Land Law (Palgrave Macmillan,3 Apr 2015)

Guyana Land Registry Act, 1959

Guyana Land Registry Act, 1998

Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17

Hunt v. Luck [1901] 1 Ch 45

Jamaica Registration of Titles Act, 1889

MacKenzie J, Phillips M, Textbook on Land Law, (Oxford University Press, 2002)

Gray K, Gray S F, Land Law (Oxford University Press, 2009)

Lloyd v. Banks (1867 - 68) LR 3 Ch App 488

Northern Counties Fire Insurance Co v Whipp [1884] CA

The University of Western Australia, Monash University Law Review (Vol 40, No 3)

United Kingdom Land Registration Act, 1862

14