|Previous Section||Index||Home Page|
Mr. Wills: As many hon. Members are aware, the Land Registration Act 2002 has achieved Royal Assent and will be implemented ahead of the Commonhold and Leasehold Reform Bill, assuming that the Bill completes its last stages successfully. For this reason, we found it necessary to take another look at those parts of the Bill which rely on the 1925 Act or will be affected by the provisions in the 2002 Act.
Subsection (l)(d) of clause 3 provides that one of the consents required before land can be registered as commonhold land is that of a person who is registered as a cautioner of the whole or part of the land. I announced on the first day of the Committee stage of the Bill that we would table an amendment to remove cautioners from the list of persons who must consent to registration of land as commonhold. Amendment 10 would do that by removing subsection (l)(d) from clause 3.
There are two reasons for doing that. First, it will honour a commitment that I made in Committee to simplify the consent requirement in the Bill, as a class of interests would be removed from the blanket protection of the consent requirement and, so far as may be necessary, would be dealt with under clause 3(l)(e). Secondly, it would give room to manoeuvre to take the provisions of the new scheme in the 2002 Act into consideration. The 2002 Act makes changes to the scheme of protection of interests on the register which makes the reference to "a cautioner" in clause 3(l)(d) no longer effective or appropriate. Under the 2002 Act it is still possible to enter cautions against first registration, and transitional arrangements mean that existing entries on the register are retained. However, it will no longer be possible to enter cautions against dealings on the register.
Instead, under the 2002 Act, cautions against dealings are, for the most part, replaced by unilateral notices. Some types of interest that are at present protected by a caution will in future be protected by a restriction. Some interests may be able to be protected by both a notice and a restriction under the new regimethe notice to protect the priority of the interest, and the restriction to ensure that certain procedural requirements of the interest are complied with.
The policy behind the inclusion of cautioners, as opposed to any other interest holder, in subsection (1)(d) was based not on a need for additional protection for cautioners, but rather on the fact that a caution is regarded as a hostile entry on the register, and is subject to the warning-off procedure. Including a requirement for the consent of cautioners in clause 3 effectively brought forward to the pre-application process any dispute under the warning-off procedure that might otherwise delay the registration of the land. Bringing potential disputes to the fore at an early stage was felt to contribute to streamlining, which we considered sufficiently necessary to include it in the Bill.
We want to continue with this policy of early discovery of potential disputes. We will also need to consider whether provision for consent by holders of interests which were protected by entering a caution is necessary. Further consideration will need to be given to whether, and if so what, consent provisions are required for beneficiaries of notices and restrictions as defined in the 2002 Act who would not previously have been cautioners under the 1925 Act.
As we want to be certain that we have given sufficient thought to the consent requirement and those interests, taking into careful consideration the implementation of the 2002 Act, it would be difficult and foolhardy to
Mr. Geoffrey Robinson (Coventry, North-West): On consents, I am not sure whether this part of the Bill relates to the issue of Millendreath in Cornwall, a village with many holiday homes, which was part of the National Union of Mineworkers, and which has a long-standing link to the former Coventry colliery, very near my constituency. Will holiday homes be covered by the provision; and what special consents, if any, might be required?
Mr. Wills: I am grateful to my hon. Friend. Other hon. Members have raised in various forums the question of whether commonhold can apply to holiday homes. I am happy to tell him that commonhold can apply to any development where there are at least two interdependent units and common parts. A development consisting entirely of holiday homes is possible, or a few holiday homes in an otherwise owner-occupied development. Commonhold as a form of tenure is flexible enough to allow for any such developments. I hope that that satisfies my hon. Friend's interests.
We are certain that further work will be necessary on the matter to which I referred, in conjunction with the implementation of the 2002 Act. In order to deal with these interests, therefore, the Government would rely on the power as it stands in subsection (l)(e) of clause 3 to prescribe other classes of persons whose consent should be required.
Clause 6(2) refers to section 82(1) of the 1925 Act, which deals with rectification. It excludes the register being rectified under section 82(1) in the specific circumstance of errors in the process leading up to the registrar registering land as commonhold land, and creates a specific procedure in respect of commonhold land for matters that are specific to commonhold.
The 2002 Act provides for a more limited scheme of rectification in clause 65 and schedule 4 than was provided under section 82(2) of the 1925 Act. However, for the purposes of clause 6, because subsection (2) of the clause paves the way for provision on rectification in error of commonholds, the more limited nature of the new scheme is not relevant. The minor change in amendment No. 11 is necessary simply to correct the reference in subsection (2), so that it refers instead to the rectification provisions of section 65 of, and schedule 4 to, the 2002 Act.
On amendment No. 12, in listing various courses of action that a court may take when making an order under clause 6, the Bill provides that the court may order the rectification of the register. This amendment would substitute the word "alteration" for "rectification".
"Rectification" under the 2002 Act has a narrower meaning than was provided under the 1925 Act. We do not want unnecessarily to restrict the power of the court under clause 6(6)(b) to ordering rectification in the new, narrower sense of the word. If there is a defect in the process leading up to registration as a commonhold rather than a mistake on the register preceded by correct registration process, we want to give the court a wide power to make an order that it feels appropriate. In those
Government amendment No. 13 is the fourth of the Government amendments to take into consideration the provisions of the 2002 Act. Clause 6(6)(g) refers to sections 83 and 84 of the 1925 Act, which are provisions in respect of indemnity. That indemnity scheme has been replaced by a scheme contained in section 103 of, and schedule 8 to, the 2002 Act. As with amendment No. 11, because clause 6(6)(g) confers a power to apply, disapply or modify for the specific commonhold context a provision of the indemnity scheme, the differences between the scheme in the 1925 Act and that in the 2002 Act are not relevant for the purposes of the Bill. This amendment would correct the reference in clause 6(6)(g) so that it refers instead to schedule 8 to the 2002 Act.
Amendments Nos. 14 to 19 amend clause 65 of the Bill, which empowers the Lord Chancellor to make rules about registration specifically in relation to commonhold land. In making provision about how these rules are to be made, what they may cover and how they are to have effect, clause 65(2) relies on references to section 144 of the 1925 Act. Clearly, those references cannot survive the repeal of the 1925 Act by the 2002 Act. Therefore, amendments Nos. 14 to 16 would remove reference to section 144 in clause 65(2) and refer instead to the "land registration rules" within the meaning of the 2002 Act. Section 132(1) of the 2002 Act defines land registration rules as any rules to be made under the 2002 Act. That is a useful definition for our purposes, as it catches all the land registration rules in the 2002 Act. As those rules, which are equivalent to those in section 144 of the 1925 Act, are separated out over a number of sections in the 2002 Act, it would be impractical to list them clause by clause.
Amendment No. 17 would remove clause 65(3)(b), which provides that commonhold registration rules may make provision disapplying section 64 of the 1925 Act in certain circumstances. Section 64 dealt with the production of certificates. It is not directly replaced in the 2002 Act, but paragraph 4 of schedule 10 of that Act provides a power to make provision about the production of certificates. The disapplication of general rules for certain circumstances can be done under that power without the need for specific provision to that effect in the Bill, as section 128(1) of the 2002 Act allows "different provision for different cases" to be made by land registration rules. In tabling this amendment, therefore, we seek simply to disapply clause 65(3)(b).
Clause 65(5) requires a commonhold registration document to be accompanied by such fee as specified by order under section 145 of the 1925 Act. Section 145 is replaced by section 102 of the 2002 Act for all relevant purposes. Amendment No. 18 would replace the reference to section 145 of the 1925 Act with a reference to section 102 of the 2002 Act.