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The Earl of Caithness: Following on from what the Minister said, perhaps I may refer to a charity that does not make any dispositions on the land. What is the advantage to it of having to register the land within the two year period?
Baroness Scotland of Asthal: The benefit is to have clarity of interest. The noble Earl knows that one of the most difficult things for many is to identify precisely who owns land, who has an interest in land and who has an overriding interest. For many years, such points have beleaguered all those who have dealt in land. The advantage proposed by the Bill is one of transparency so that those who have the benefit of the interest will be able to register that interest and anyone coming to the register will be privy to the rights and responsibilities that they will be subject to and take on by virtue of that disposition. That transparency must, of itself, be a real benefit.
Baroness Buscombe: I thank the Minister for her response. I appreciate the transitional period of two years to support those such as charities who will have to comply with the provisions of the Bill. I cannot agree with the noble Baroness that the benefits outweigh the burdens. We are talking here about exceptional properties and exceptional owners. Charities and others will be forced to spend an enormous amount of money on carrying out searches on these properties to ensure that they are then able to be registered. I cannot believe that the ambition for a complete register is a benefit that outweighs that burden. While the ambition is in principle a good one, it is too inflexible in this instance. On that basis, I wish to test the opinion of the Committee.
Resolved in the negative, and amendment disagreed to accordingly.
The noble Viscount said: The amendment is designed to enable the holder of a profit appurtenant--that is, a right of pasture, fishing and so on attached to his land--to caution against first registration of the land over which his right exists. The report does not explain why the ability to caution is restricted to profits in gross--that is, not annexed to any land. The holder of each type of profit has an equal interest in ensuring that his right is recorded on registration of the land over which it is exercisable. I beg to move.
Baroness Scotland of Asthal: As the noble Viscount rightly said, Clause 15 defines the circumstances in which a caution against first registration can be lodged. A caution can only be lodged if it relates to a qualifying estate. Subsection (2) defines what is a qualifying estate for this purpose.
It may be helpful if I explain that a profit which exists in gross is one which is capable of an independent existence from land, such as the right to hunt, shoot game or harvest crops. One of the important changes made by the Bill is to make these valuable rights capable of registration in their own right.
The amendment tabled by the noble Viscount would remove the words "in gross" from the definition of profit a prendre in the list of qualifying estates. The effect would be to enable a caution against registration to be lodged in respect of any profit, including those which are only appurtenant to the land. These profits, however, are not capable of being registered with their own titles.
It therefore follows that any caution against first registration in relation to such a profit would have to be lodged against the registration of the title to the estate which the profit affects. But an unregistered legal estate in land is already a qualifying estate in land for the purposes of the clause. The owner of the profit would therefore be able to lodge a caution against the registration of the title to the estate because he or she is entitled to an interest affecting a qualified estate.
The change to the Bill, if I may respectfully say so, is not necessary. In the light of this explanation, I hope that the noble Viscount will feel able to withdraw his amendment. I quite understand that, when there is a question mark of this kind, it is important to clarify the matter openly in debate in order that there can be no misunderstanding.
Amendment No. 26 and the related amendments specify a minimum period which must be allowed to the recipient of a notification for him to respond and protect his rights. Such provisions can in effect have substantive results as such a person may lose his rights if the period is too short for an effective response. It is therefore appropriate to restrict the rule-making power to ensure that adequate notice is always given. I beg to move.
Baroness Scotland of Asthal: Amendments Nos. 26, 64 and 67 deal with a common issue. That issue is whether a minimum length of time should be specified in rule-making powers in the Bill which allow notice periods to be prescribed. I shall therefore consider these amendments together.
I shall turn first to Amendment No. 26. As we have already seen, Clause 18 deals with the mechanics of applications to cancel cautions against first registration. When an application is received for cancellation, the registrar will serve the notice on the cautioner. The cautioner will in many cases object to the withdrawal of the caution, and if agreement cannot be reached the matter will be referred to the adjudicator for resolution.
Subsection (4) provides that if the cautioner does not respond within the period which is specified in the rules, the registrar must cancel the caution. This is because the obligation lies with the cautioner to substantiate his claim. The amendment moved by the noble Viscount seeks to impose a minimum period of notice below which the rules cannot go.
In that situation, the cautioner is given 14 days to respond. This period is set out in the rules. The rules also provide that the registrar can shorten the period stipulated in the notice, but not to less than seven days. There is another factor in the equation. The rules contain deemed delivery provisions which say that a notice is deemed to be received seven days after posting, not including the day of posting. This means that the cautioner can in reality have as much as 22 days' notice.
Our first thoughts were that these provisions are broadly right, and there is no intention to change the deeming provisions or the periods of notice in the foreseeable future. The Committee may be interested to know that, far from concerns being raised that notice periods are too short, the Land Registry has in fact received complaints that third parties are in fact given too long to respond.
It may be helpful to remember that, generally, challenges to the registration of a caution will come when a property is about to be sold and investigations at the registry reveal its existence. That is the time when it becomes critical. There is a balance to be struck between the period of time given to the cautioner to respond to a notice and the inevitable delay that will result in the sale of the property while the matter is investigated.
While we appreciate the concerns raised by the noble Viscount, I hope it will be of some assurance to him that the rules which will stipulate the period of notice, although not subject to detailed parliamentary scrutiny, are subject to the scrutiny of the Land Registration Rule Committee. Members of the Committee will know how zealous the rule committee is in dealing with these matters appropriately. It will be well placed to balance the various interests and to take a rounded view on what the appropriate period should be. It is of some importance that the committee should be free to set whatever limit or limits are appropriate to the variety of circumstances with which the rules will have to deal. That will develop over time.
I turn now to Amendment No. 64. Clause 36 deals with the mechanics of applications to cancel unilateral notices. It is very similar to the procedures for applications for the cancellation of cautions against first registration. When an application is received for cancellation, the registrar will serve notice on the person with the benefit of the notice. That person will in many cases object to the withdrawal of the notice and, if agreement cannot be reached, the matter will be referred to the adjudicator for resolution.
Subsection (3) provides that if the person with the benefit of the notice does not respond within the period specified in the rules, the registrar must cancel the notice. As with applications for cautions against first registration, the obligation lies with the person who has placed the entry on the register to substantiate his claim. It is clear that a reasonable period of notice
As with cautions against first registration, challenges to the registration of a notice will come when the property is about to be sold and investigations at the registry reveal its existence. There is a balance to be struck between the period of time given to the person who has lodged the unilateral notice to respond to a notice from the registrar and the inevitable delay that will result in the sale of the property while the matter is investigated. We have attempted to get that balance right. It is not always as easy as one would like.
I turn finally to Amendment No. 67. Clause 45 deals with the mechanics of serving notice of applications to register a voluntary restriction. When an application is received for the entry of a restriction, the registrar will serve notice on the registered proprietor. The registered proprietor may in some cases object to the registration of the restriction and, if agreement cannot be reached, the matter will be referred, as in other cases, to the adjudicator for resolution.
Subsection (2) provides that the registrar must not determine the application if the registered proprietor has not responded until the notice period specified in the rules has expired. The amendment seeks to impose a minimum period of notice below which the rules cannot go. As with the other rules that I have mentioned, rules concerning notice periods under Clause 45 are subject to the scrutiny of the Land Registration Rule Committee. This committee is best placed to decide what the appropriate period should be, and its decisions should not be fettered by an arbitrary period specified in the clause. We know that the periods will vary, particularly if we get to the stage of having e-conveyancing which will make matters a lot quicker. The rule committee may then be in a position to shorten or lengthen a period, or to adjust the rules, so as best to meet the needs of any given situation. Situations will vary; whereas to set these matters in stone in the Bill will make the process rather cumbersome and heavy.
The notice period that is settled upon must fit in with the land registration scheme for notices generally. The scheme may well change over time, and we have catered for that. Twenty-eight days may be far too long in the situation with which we shall be faced, I hope relatively quickly, when e-conveyancing is introduced and this is done on-line. It may be possible to do it much more quickly, efficiently and effectively without causing any risk or difficulty in relation to those who are attempting to apply it.
We believe that our approach strikes a balance between the period of time given to the registered proprietor to respond to a notice and the delay and inconvenience caused to the applicant for the entry of a restriction while the matter is investigated.
Taking all those factors into account, the Bill should not artificially restrict the power of the Lord Chancellor, with the assistance of the rule committee which advises him, to make the right decision for the circumstances that exist from time to time. I hope that my response has covered the concerns raised by the noble Viscount.
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