Where title absolute. (iii) if the proprietor of the land is registered with an (4) Rights to mines and minerals created previously to the registration of the land or the 1st of January, 1898; and (5) Rights of entry, search, and user, and other rights and reservations incidental to or required for the purpose of giving full effect to the enjoyment of rights to mines and minerals, or of property in mines or minerals, and created previously to the registration of the land or the 1st of January, 1898; aud (6) Rights of fishing and sporting, seignorial and manorial rights of all descriptions, and franchises exercisable over the registered lands; also liability to repair the chancel of any church, liability in respect of embankments and river walls, and drainage rights, customary rights. public rights, and profits à prendre; and (7) Leases or agreements for leases and other tenancies for any term not exceeding twenty-one years, or for any less estate, in cases where there is an occupation under such tenancies; also, subject to the provisions of the Land Transfer Act, 1897 (see sect. 12), rights acquired or in course of being acquired under the Limitation Acts: Provided as follows: (a) Where it is proved to the satisfaction of the registrar that any land registered, or about to be registered, is exempt from land tax or tithe rentcharge, or from payments in lieu of tithes or of tithe rentcharge, the registrar may notify the fact on the register in the prescribed manner (see Land Transfer Rules (1903), 212); and (b) The Commissioners of Inland Revenue shall, upon the application of the proprietors of any land registered or about to be registered, upon such declaration being made, or such other evidence being produced as the Commissioners require, and upon payment of the prescribed fee, grant a certificate that at the date of the grant thereof no succession duty is owing in respect of such land, and the registrar shall in the prescribed manner notify such fact on the register, and such notification shall be conclusive evidence of the fact so notified in respect of succession duty (see, however, stat. 60 & 61 Vict. c. 65, s. 13, which appears to supersede this provision); and (c) Where it is proved to the satisfaction of the registrar that the right to any mines or minerals is vested in the proprietor of land registered or about to be registered, the registrar may register such proprietor in the prescribed manner as proprietor of such mines and minerals as well as of the land (see Land Transfer Rules (1903), 213); and (d) Where it is proved to the satisfaction of the registrar that the right to any mines or minerals is severed from any land registered or about to be registered, the registrar may, on the application of the person entitled to any such mines and minerals, register him as proprietor of such mines and minerals in manner in the Act of 1875 mentioned (see sect. 82; Land Transfer Rules (1903), 71, 74), and upon such registration being effected shall enter on the register of the land a reference to the registration of such other person as proprietor of such mines and minerals (see Land Transfer Rules (1903), 214). Where the existence of any such liabilities, rights or interests, as are mentioned in this section is proved to the satisfaction of the registrar, the registrar may, if he think fit, enter on the register notice of such liabilities, rights or interests, in the prescribed manner. This power shall be exercised in all cases where the abstract of title on first registration or on registration as qualified or absolute discloses absolute title (p), and there are incumbrances (iv) where the proprietor of the land is registered Where title with a qualified title, the same evidence as above qualified. provided in the case of absolute title, and such evidence as to any estate, right, or interest excluded from the effect of the registration (2) as a purchaser would be entitled to if the land were unregistered; (v) if the land is registered with a possessory title, Where title such evidence of the title subsisting or capable of possessory. arising at the first registration of the land (r) as the purchaser would be entitled to if the land were unregistered. (Sub-s. 2.) Where the vendor of registered land is not himself registered as proprietor of the land or of a the existence of any such liabilities as are mentioned in sub-sections 4 and 5 (see Land Transfer Rules (1903), 215). Where an easement is registered as an incumbrance, the dominant and servient tenements shall be defined, if practicable and required by the parties. Notice of a power of re-entry and of a right of reverter may be entered on the register under this paragraph. an (p) As to the effect of the registration of land with absolute title and the registered transfer of land so registered, see stat. 38 & 39 Vict. c. 87, ss. 7, 13, 30, 35, 105; Land Transfer Rules (1903), 55, 147. (1) The registration of land with a qualified title and the registered transfer of land so registered do not affect or prejudice the enforcement of any estate, right or interest appearing by the register to be excepted from the effect of registration; stat. 38 & 39 Vict. c. 87, ss. 9, 31; Land Transfer Rules (1903), 49, 50, 52, 58, 59, 140. These rules introduced a particular kind of qualified title called a good leasehold title. Registration of land with a good leasehold title and the () The registration of land Where vendor As to covenants for title. Delivery of land certificate. charge giving a power of sale over the land, he shall, at the request of the purchaser and at his own expense, and notwithstanding any stipulation to the contrary, either procure the registration of himself as proprietor of the land or of the charge, as the case may be, or procure a transfer from the registered proprietor to the purchaser. (Sub-s. 3.) In the absence of special stipulation, a vendor of land registered with an absolute title shall not be required to enter into any covenant for title, and a vendor of land registered with a possessory or qualified title shall only be required to covenant against estates and interests excluded from the effect of registration, and the implied covenants under sect. 7 of the Conveyancing and Law of Property Act, 1881, shall be construed accordingly. (Sect. 8, sub-s. 2.) Where a land certificate (s) or an office copy of a registered lease (1) has been issued, the vendor shall deliver it to the purchaser on completion of the purchase, or, if only a part of the land comprised in the certificate or office copy is sold, he shall, at his own expense, produce or procure the production of, the certificate or office copy in accordance with this section for the completion of the purchaser's registration (u). Where the certificate or office copy has been lost or destroyed (r), the vendor shall pay the costs of the pro certificate of charge shall be produced to the registrar on every entry in the register of a disposition by the registered proprietor of the land or charge to which it relates, and a note of such entry is required to be officially endorsed thereon. And by the Land Transfer Rules (1903), 265, the registrar may require such certificate to be produced on any application for registration made by or with the consent of the registered proprietor of the land or of a charge or incumbrance. (x) See sect. 8 (3). ceedings required to enable the registrar to proceed without it. can be instruments. The above provisions are most important terms of What evian open contract for the sale of registered land, and dence of title must of course be considered in connexion with and as required. modifying the general law defining the relations of vendor and purchaser on a sale of land (). The language of sect. 16 (1) (i) of the Land Transfer Act, 1897, is not clear: but as it is enacted that the purchaser shall not require any evidence of title except the alternatives specified, it appears that the vendor is not No abstract bound to furnish any abstract of any registered docu- of registered ment (such as an instrument of transfer or charge) dealing with the land sold (); and it seems to be in the option of the purchaser to require, as proof of the title to registered land, either the evidence to be obtained from an inspection of the register, or the evidence of a certified copy of or extract from the register. In order to avail himself of the former alternative he must obtain the authority of the vendor (a); and this, it is submitted, the vendor is bound to give. Having obtained such authority, the purchaser may either search the register himself or apply for an official search to be made, and the issue of a certificate of the result (b). If the purchaser choose to require a certified (y) Above, pp. 27-29, 34-42. (2) It has been suggested that, on a sale of registered land, the abstract will consist of a copy of the entries in the register; 1 Key & Elph. Prec. Conv. 242, 8th ed. But it is questionable whether the vendor is bound to deliver anything in the nature of an abstract of his title to any registered land sold, except as regards estates, interests or rights excluded from the effect of registration. Where a vendor's title does not consist copy of, or extract from, the register, and the vendor have none such in his possession, it appears that the purchaser must bear the expense of procuring the same (e). And if the purchaser obtain the vendor's authority to inspect the register, office copies of any entry in the register or of any document in the registry shall be issued, upon his application in writing, to him or his solicitor (d). The purchaser, it is thought, must also bear the expense of any statutory declaration which he may require under sect. 16 (1) (ii) of the Land Transfer Act, 1897, with regard to matters declared by sect. 18 of the Act of 1875 and the Act of 1897 not to be incumbrances (c). Sect. 16 (1) (ii) of the Act of 1897 (e) also lacks clearness of expression: but it is submitted that the existence or non-existence of the matters declared by the Acts not to be incumbrances is the only fact in connexion therewith as to which the purchaser is restricted to the evidence of the vendor's statutory declaration (f). If any such matters exist, they are not affected by the statutory provisions as to the effect of first registration and registered transfers (g). With respect to such matters, therefore, and also as to all other estates or interests excluded from the effect of registration-as, for instance, those expressly saved from the operation of registration with a qualified, a good leasehold, or a possessory title (7)-the sale of registered land appears to be governed by the general law. And if a man sell under an open contract any registered land which is subject to the existence of any estates or interests included in those declared not to be incumbrances, and necessary to be conveyed in order to make a good title-as, for instance, rights to mines or minerals (c) Stat. 44 & 45 Vict. c. 41, 8. 3 (6); above, pp. 28, 37, 95, 1057. 294. (d) Land Transfer Rules (1903), (e) Above, p. 1059. (f) It should be observed that some of these matters may be found noted in the register; above, p. 1060, n. (o). (g) Above, p. 1058, n. (c). |