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Land Registration in England and Slovakia LAND REGISTRATION IN ENGLAND AND SLOVAKIA − COMPARATIVE STUDY. by MONIKA VOZARIKOVA A thesis submitted to The University of Birmingham for the degree of MASTER OF LAWS School of Law The University of Birmingham June 2010 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Thesis Title: Land registration in England and Slovakia – Comparative Study. Student Name: Monika Vozarikova Keywords: Land registration, Land Register, Cadastre, registered conveyancing, unregistered conveyancing, overriding interests. Abstract This thesis examines on a comparative basis the purpose, principles, functioning and effectiveness of the land registration systems in two EU member states - England and Slovakia. The comparative study aims to provide reflections “de lege ferenda” offering suggestions for statutory amendments. The thesis also examines the effect of land registration on the security and speed of conveyancing process in each state. In order to accomplish a comprehensive and up-to-date comparative study I have utilized the research conducted in the field of property law in the selected countries in order to complete an in-depth review of the national legislations on a comparative basis. The objective was to produce a comprehensive and scientifically accurate comparative study, not a mere „manual“. Therefore the thesis is based on a careful analysis of primary and secondary resources, such as national statutory provisions, journal articles, monographys, textbooks, case. The thesis challenges the argument that land registration represents an unnecessary state intervention. It also provides persuasive arguments for the superiority of the registered system of conveyancing over the unregistered conveyancing. ACKNOWLEDGEMENT I am heartily thankful to my supervisor, Professor Gordon Woodman, whose guidance, support, encouragement and precious comments on chapter drafts enabled me to develop an understanding of the subject in its complexity. Lastly, I offer my regards and blessings to all of those who supported me in any respect during the completion of the project. Monika Vozarikova TABLE OF CONTENTS INTRODUCTION..........................................................................................................6 1. HISTORY OF LAND REGISTRATION IN ENGLAND AND SLOVAKIA...................9 1.1 FEUDALISM.......................................................................................................9 1.2 BETWEEN 16th AND 18th CENTURIES............................................................10 1.3 MODERN TIMES..............................................................................................14 1.4 SUMMARY........................................................................................................34 2. TOWARDS THE COMPREHENSIVE LAND REGISTER.......................................37 2.1 LAND REGISTER – ESSENTIAL?..................................................................37 2.2 THE WAY TOWARDS THE COMPREHENSIVE LAND REGISTER...............43 3. LAND REGISTER VS. CADASTRE.......................................................................54 3.1 PURPOSE OF THE LAND REGISTER AND CADASTRE..............................55 3.2 ADMINISTRATION..........................................................................................59 3.3 THE SUBJECT AND CONTENT OF THE LAND REGISTER/CADASTRE.....62 3.4 PRINCIPLES OF THE TWO SYSTEMS OF REGISTRATION.......................68 3.4.1 THE PRINCIPLE OF PUBLICITY......................................................68 3.4.2 THE REGISTRATION CONFERS TITLE.........................................82 3.4.3 THE PRINCIPLE OF CONCLUSIVENESS OF REGISTRATION....84 3.4.4 THE PRINCIPLE OF CREDIBILITY AND THE INSURANCE PRINCIPLE......................................................................................96 3.4.5 THE PRINCIPLE OF LEGALITY....................................................112 3.4.6 THE PRINCIPLE OF PRIORITY.....................................................113 3.4.7 THE PRINCIPLE OF INDIVIDUALITY...........................................117 3.4.8 THE MIRROR PRINCIPLE...........................................................117 4. THE SALE OF LAND......................................................................................119 4.1 CLASSIFICATION OF RIGHTS ON A PURCHASE OF LAND.............120 4.2 THE PRE-CONTRACTUAL STAGE......................................................122 4.3 FORMATION OF ENFORCEABLE CONTRACT..................................138 4.4 BETWEEN CONTRACT AND COMPLETION......................................152 4.5 COMPLETION......................................................................................162 CONCLUSION..........................................................................................................172 LIST OF ABBREVIATIONS………………………………………………………………176 BIBLIOGRAPHY.......................................................................................................177 INTRODUCTION The general mistrust in institutions, confusion over the pension, tax systems and falling equity markets has led popular opinion towards investing in properties. More and more people are turning to property due to failure of high expected returns in other sectors. Also, buying property abroad is more popular than ever. Although the expected profit from investment in buying property abroad is tempting potential investors need to be aware of the legal requirements under the national legislation regarding acquisition of real property. No two countries in the world have identical legal systems, nor are the rules and regulations that govern the purchase of property the same. This applies also to the EU member states, which all have their own property laws and often their own specific legal terminology. A person seeking property investment opportunities will be therefore interested to know prior to the purchase whether the property have a clear title, are there any incumbrances on the property, is there tax on rental income, is there a double tax treaty, what are the residency/immigration rules and probate law regulations. In this respect, the land registers operating in many countries serve to facilitate a secure conveyancing process. This applies also to England and Slovakia, which both operate institutionalised land registers. The functioning of the land registration systems in these countries is the subject matter of this thesis. It is one of the main objectives of this work to scrutinise the effectiveness of the registers and registration procedures in both countries. Although the area of land law is in both states well researched, just few handbooks or journal articles have been dedicated to comparison of national legal systems in the sphere of property dispositions, while many of them are out-dated. Practical manuals offering an outline of foreign regulations applicable to property dispositions have been written mainly by non-lawyers and merely for the purpose to provide a lay purchaser with a general information of the process of purchasing properties abroad. These publications cannot be regarded as all-embracing sources of all aspects regarding acquisition of properties. At the same time the accuracy of these works is questionable. In order to accomplish a comprehensive and up-to-date comparative study I will utilize the research conducted in the field of property law in the selected countries in order to complete an in-depth review of the national legislations on a comparative basis. The objective is to produce a comprehensive and scientifically accurate comparative study, not a mere „manual“. Therefore the thesis is based on a careful analysis of primary and secondary resources, such as national statutory provisions, journal articles, monographys, textbooks, case reports, electronic sources, historical records. The interpretation of the specific legal terms with respect to property dispositions will require studying law dictionaries of the countries selected. The thesis is divided into four chapters with its subheadings. The foundation of the thesis is laid in the first chapter which is intended to be a brief introduction into the history of land registration in England and Slovakia. This chapter is designed to find answers to the question: What were the historical, political and social determinants which determined the current state of land registration and system of conveyance? Continually, the next chapter entitled “Towards the comprehensive land register” will examine the forces behind commencement/development of the system of land registration in both states and the different methods chosen by each state to reach a comprehensive land register. One of the main parts of the thesis can be found in Chapter 3 which is dedicated to the careful analysis of the Land Register in England and the Cadastre in Slovakia. The practical functioning of these registers will be then demonstrated on a selected disposition with land by way of sale in Chapter 4. The thesis highlights the existing
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