« PrejšnjaNaprej »
imperative that some one of unquestionable capacity and responsibility should certify that a good title has been shown.
Therefore it is that 'Registration of title' has come to the forefront, for that expression simply means that a certificate by some recognized authority that a good title exists shall bind all future
Officialism then in some degree, either more or less, is incident to any system of registration of title.
The very word officialism' conjures up very serious objections to the ordinary English mind. Whatever it may be elsewhere, we still believe in the principle of individualism ; we still, as we think, rightly cling to our good doctrine of laisser-faire, which has seen our colonies grow and flourish, while bureaucracy and redtapeism have caused the colonial possessions of other countries to wither, decay, and oftentimes to come to naught.
The experiment, then, of taking the conduct of conveyancing business out of the hands of a body of men who are familiar with it, and understand the ways and needs of the land-owning community, and of substituting a system of officialism with its circumlocution, its red-tape, its dilatoriness, is a serious one. One need dilate no further on the rampant evils of officialism, but the words of an experienced solicitor especially qualified to speak as regards the Land Registry may well be quoted ::
Those who are practically engaged in business know that there is no greater source of delay, expense, uncertainty, and difficulty than in dealing with a public office. In conveyancing this is especially so, and from the old-fashioned Middlesex and Yorkshire registries down to the modern Irish Incumbered Estate Court, and the Lincoln's Inn Land Registry, public offices have formed a fertile source of delay, difficulty, and expense. The officialism, redtapeism, and routine necessarily attendant upon a public office constantly double the delay and cost of a transaction. Moreover, a public office prevents the free action of the parties, makes them dependent on those over whom they have no control, and subjects them to rules and regulations which they cannot understand, and cannot see the benefit of. The moment a public officer with his forms and ceremonies, his ignorance of the facts of the case, his want of local knowledge, his necessary adherence to inflexible rules and forms, his office-like bearing and habits, his short hours and public holidays, his numerous cases all calling for attention at the same time, is interposed between man dealing with man, a sure and certain obstacle to ready and easy transaction of business is created?!
It may also be of interest to quote from Registration of Title to | This and the following extract are taken from Observations by the Incorporated Law Society, on Land Transfer Bills, 1893 and 1894.
to land (1886), by Mr. Brickdale, Assistant Registrar of Titles under the 1875 Act :
The little business that the office has had has been conducted under such a perpetual terror of making the slightest mistake or leaving the least loophole for imposition, and, as a consequence, under such stringent safety regulations that the process of first registration costs a great deal more trouble and time than all the law expenses of a sale of the property under the usual conditions ; and, what is more, when at length all that trouble has been gone through, and the bill has been paid and the property is registered, the office procedure in registered sales and mortgages and all dealings is so cumbrous as constantly to delay the proceedings beyond the limits of time expended under the old system, and many cases to result in greater expense to the parties than they would have incurred if the estate had not been registered ; most especially is this likely to happen in the case of small properties.'
Then the question arises whether some plan can be devised by which registration of title can be conducted without the attendant evils of officialism, or be reduced to an innocuous degree, and it will be the humble effort of the writer of these pages to suggest the outlines of such a plan.
It has been already remarked that ' registration of title,' which is our device for doing away with repeated investigation of title, will, since it must be done by independent and competent persons, necessarily involve officialism, and officialism be it observed will prevail in semi-private as with purely public institutions. You find red-tapeism, and see its development in business transactions with officials representing important banks, great railway companies, municipal corporations and the like; but by the plan suggested in this article the rules by which the machinery of registration of title would be worked would be able to be made workable by the general body of solicitors conducting conveyancing business ; in brief, it would substitute for the rigidity of a government system rules of elastic nature framed, carried out, and amended as occasion might require by solicitors themselves, who know better than other people what is best for those whose interests they serve.
The proposals to accomplish the end in view are shortly these. (1) In specified districts solicitors carrying on business therein should be allowed to form Land Transfer Societies, on the principle of Joint Stock Companies. (2) The affairs of each society would be controlled by a paid Board of Management. (3) The capital required for offices, salaries, and so forth to be raised by 5 per cent. preference shares held by members, being local solicitors. (4) Any profits made by the society, after payment of salaries, interest on
capital, and other outgoings, to be divided pro rata between those solicitors who, during the financial year, had introduced business to their society. (5) The chief business of each society would be to issue certificates of title binding on future purchasers, and to register transfers on change of ownership, also instruments of charge. The society would also have control of what would be in effect a local land registry, since registration of title would be made compulsory on any dealing with land situate witain the district of the society. (6) Every society to be rendered liable to purchasers, and other specified persons affected by negligence of its officials in the certifying of title or otherwise; but owners to give purchasers or mortgagees implied covenants for title, as now, on every transaction.
A bill to embody any scheme of this kind would have to emanate with the Incorporated Law Society: and a bill prepared at their instance, and prepared with the concurrence of the Conveyancing Bar, would doubtless be thoroughly practical, and would probably meet, as no measure has yet met, with the approval of the whole legal profession.
The pecuniary profits which would follow would, no doubt, prove a sufficient inducement to the solicitors in each district to form the proposed society, but failing this, Government should be at liberty to institute a Land. Registry and acquire any profits which might be made.
The short result of this scheme would be that conveyancing business would go on very much as now; the vendor's solicitor would still deduce his client's title, and the purchaser's solicitor would register his client's title, but the material difference would be that the societies would investigate the title once for all, so that all future investigation would become unnecessary.
The business of each society would be managed by a Board which would have to be a representative one, who would, in their own interest, see that competent and trustworthy examiners of title, or'conveyancing clerks' as we now call them, were employed. They would probably find it of advantage to have no classification of titles, such as 'absolute,' 'qualified,' and 'possessory. Their examiners would most likely be instructed to satisfy themselves that there was a 'safe holding title’l; a purchaser should not be allowed to require more, which is practically the case now, and a certificate of safe-holding title should be made binding on every succeeding registered person.
Under the present system a purchaser relies on the care displayed by his solicitor as to title; and to some extent on his vendor's
| Compare Mr. Lake's evidence, Land Transfer Report, 1895 (2683).
covenants, the latter of smaller practical value than might be supposed ; but in ninety-nine cases out of every hundred, the purchaser gets all that he really requires, that is, undisturbed possession. He does not want the luxury of a certificate granted by the State of an absolute, or indefeasible title, which means extra vigilance on the part of State officials, but vexation, expense and delay on the part of every one else concerned.
Under the recent Land Transfer Rules (Rule 32), for example, an advertisement of the proposed certification of an absolute title has to be gazetted and inserted in newspapers. The expense, delay, and annoyance to clients which this would involve would be avoided under the system herein advocated.
Under the scheme now suggested the present modus operandi would be continued as far as practicable. If a certificate of title were negligently issued any purchaser, or other specified person, misled or affected by it would have a right of action against the society, and the probable right to enforce covenants for title would also exist. If fraud were proved, then the rights of the parties would be determined by the Court according to general principles of law. A certificate of title granted by the State may sound very imposing, but owners of property in England have done very well without it these many years, and the cost and difficulties attending it would make the State-manufactured article a great deal too expensive for ordinary consumption.
The remuneration of solicitors for deducing title, likewise for registering title, and the general registry fees, might be as under the rules issued since the Land Transfer Act, 1897, but the fees would of course go to the societies instead of to the Government.
It is not feasible in this article to deal with the proposed scheme in detail, but there is one matter of importance which would have to be carefully considered, the question, namely, How should the area to be appropriated to each society be allocated ? For it is obvious, in order to secure efficient working, and to avoid placehunting and similar scandals, that each district must be so divided that the number of solicitors practising therein should be sufficiently numerous to prevent the objections of a close corporation, or select vestry.
What the principle in grouping districts would be would have to be decided, but it occurs to the writer that the best basis would be that of population (compare the Redistribution Act, 1885), that is, a Land Transfer Society and Registry should be allotted to a specified number of inhabitants, excluding the larger towns, such as Manchester, Liverpool, and Birmingham, having a population of a prescribed number, which would have their own district.
It would be expedient, having settled the limits of any district containing several towns therein, to determine in which town the registering office should be placed, which matter should be settled by regard to geographical position, railway accessibility, and the like.
On the subject of districts attention may be directed to the circumstance that the entire business of deducing title, registering transfers of conveyance or mortgages, and so forth, could be transacted through the post, without the necessity of solicitors employing local agents. No difficulty is experienced in carrying through Probate Registry work, or in passing complicated accounts at Somerset House by means of the post; in short, the post office, railway, and other business facilities of the present day are so great that a personal attendance at an official registry is rarely necessary.
The chief, and as it appears to the writer, the highly important advantages of such a scheme as is herein proposed are, that rules would be framed by thoroughly practical and experienced men,
and that it would be in the interest of each society and its representatives to promote its business by facilitating it in every possible way; and the moment any rule should prove unworkable it would be brought before the Board, when a speedy remedy would probably be found.
But it may be urged that machinery so maintained might lead to laxity on the part of the societies, but the answer to that is that an action would lie against the society if certificates of title were negligently issued, or if the society were otherwise negligent in its duties. In passing it may be pointed out that a purchaser would be far better off in a case of negligence than at present, for now the client's solicitor may be a man of straw, but the society would be a responsible body: moreover it is proposed that implied covenants for title should be entered into on every transaction, as at present. If I buy a chattel the law implies a warranty of title by the seller ; and why the seller of land under any system of registration of title should be relieved of a natural liability is not apparent.
The question who is to be liable in case of a negligent certificate is very important, and strikes at the root of the whole matter; for it is obvious that the knowledge that his department may be rendered liable would ever be present in the mind of an examiner of title. “He must be at least as careful as the most careful purchaser before agreeing to give his certificate of title ?,' and it would make him more and more technical, and prevent the machinery of
| Report of Select Committee on Land Transfer, 1879—Mr. Shaw Lefevre's draft Report ; see also Mr. Wolstenholme's evidence, Land Transfer Proceedings, 1895, as to investigation of title by a public official.