The history of conveyancing

The history of conveyancing

The process of conveyancing has been the subject of huge legal change over the centuries. These changes have been driven by paradigmatic political, social and economic factors which have influenced how the law has been written and interpreted. From the Black Death, 20th century neoliberalism, and the information technology boom of today, conveyancing has been a part of a dynamic legal timeline and it continues to adapt and develop in response to societal changes. This article discusses these key historical developments as a summary of how conveyancing has come to be.

Medieval period: the collapse of feudalism

Conveyancing is predicated on property ownership, and the transfer of that ownership by law. In Anglo-Saxon England, property ownership was tied to local, customary rules, and it was only after the Norman Conquest of 1066 that common law was implemented in England and standardised feudal rules were created. In the years following the establishment of feudalism, serfdom dominated land law, limiting the power of property ownership to a small number of aristocrats. Under this system, most of the peasantry were bonded to their masters, and in 1086 around 88% of the population were bound to work the land of the feudal lords.

Conveyancing law in the medieval period was designed to benefit these feudal lords, to maintain control over land and the wealth it produced. For example, the statute quia emptores 1290 prevented tenants from alienating their lands by subinfeudation, which was a process where tenants could carve out land into distinct tenures and make a new tenant their vassal. Quia emptores instead required tenants to alienate their land by substitution, which would sever their ties to the land completely and substitute the new tenant. This protected lords from risks of being defeated by subinfeudation and kept new tenants obliged to them.

The arrival of the Black Death in 1348, and the catastrophic population collapse that came with it, gave peasants strong bargaining power against landowners. In part due to this increased recognition of the necessity of agricultural workers, attitudes to servitude as part of the natural social order shifted, so that by 1485 only 1% of the population remained in bondage. Though things were still difficult for the poorest, the power of the landed estates had been weakened — but was still not broken.

Liberal reforms: enlightenment philosophy and the courts

Despite the loosening of feudalism’s vice grip, the poorest still largely remained without property. There were, however, many key developments taking place as a prelude to dispersing property more fairly between citizens. For example, the Statute of Wills 1540 permitted devise by will so landowners could decide who would inherit their land. This statute remained valid law up until 1911 and applied to wills made before 1838. From 1604, Inclosure Acts created legal property rights over land previously held in common, distributing swathes of English farmland to private owners and displacing many tenant farmers during the agricultural revolution.

These were welcome developments for many, but it was only following the destruction of the English Civil War that feudalism formally ended in England. After the war, monarchic power structures were eroded by enlightenment thinking which was based primarily on concepts such as liberty, justice, fairness and rights of the individual. These ideals began to circulate in wider society, turning liberalism into a viable alternative to the authority of an absolute sovereign. Such liberal ideas took form in legal documents such as the 1689 Bill of Rights, but also influenced how the Court of Chancery dispensed equity.

The courts of equity became increasingly prominent as courts designed to dispense justice in line with principles of fairness rather than strict common law, and in the equity courts of the 1820s nearly a third of disputes were over land. The complexities of conveyancing law was the source of this vast number of suits, and litigation costs were greatly disproportionate to property purchase prices. The case of Mellish v Assender highlighted the poor state of the court, where after two years there were still lost documents, an outstanding legal estate and an unregistered deed. Charles Dickens parodied the Chancery Court in Bleak House’s case of Jarndyce and Jarndyce, degrading the court as utterly ineffective, and in 1852 the Times wrote that there was “almost unanimity” of opinion that two separate court systems was “the parent of most of the defects in the administration of our law”.

From 1873 to 1875, the common law and equity courts and procedures were fused into one hierarchy, with equity cases to be dealt with by the High Court of Justice, Chancery Division. The Supreme Court of Judicature Act 1875 brought these changes into effect, dissolving the Court of Chancery and enacting that in cases of conflict between the common law and equity, equitable principles would prevail. So thanks to the litigious quagmire of conveyancing triggering the need for reform, the court system became far more effective. Paired with the improved conveyancing system that had been built over the 19th century, there was an increasingly resilient and modern system installed — one that remains in place to this very day.

Modern period: compulsory registration

Following the complete collapse of feudalism and the emergence of liberalism, Britain entered the 20th century amid enormous political reform with vast amounts of the population becoming eligible to vote. Enfranchisement eroded the well-established aristocratic regimes and institutions, in turn affecting the property market and how conveyancing operated. The principle of land changed, having become an asset able to generate wealth which could be bought and sold for housing, agriculture, development or to become protected as national parks.

Liberals in the late 1800s were keen to further erode aristocratic control and proposed a strategy for all land to be placed on a register to effect easier marketing. The Land Transfer Act 1875 attempted to introduce this strategy in legislation by creating a title registration system, but it was flawed as it was voluntary, and ultimately it was not taken up. Following the 1906 election with a Liberal party majority in Parliament, David Lloyd George set the groundwork for serious registration reform; however, it was the later Land Registration Act 1925 that brought in the registration system we know today, requiring dealings with property to trigger compulsory registration.

It was acknowledged that in addition to the existence of legal estates in land, there were equitable interests making it possible for a number of estates to exist simultaneously with respect to the same plot of land. On top of this, there could also exist a number of different third-party rights over the land such as easements and covenants. Creating such interests in land involved considerable formality and artificiality, with the result that titles to land depended on interpretation of deeds which were difficult to read and understand.

This led to the Land Registration Act 1925, which made it compulsory for land to be registered upon certain dispositions. For example, the transfer of an unregistered title would trigger first registration of that title. The primary aim of such registration was to rid the need for incomprehensible title deeds and to create and maintain an accurate register of all property, their estates, equitable interests and third party rights. Many principles under the legislation ensured a more concise and streamlined conveyancing process.

In addition to the LRA 1925, land law in the early 20th century was becoming more social in character. First, the Housing Act 1919 and the post war government’s policy of building “homes fit for heroes” meant more and more houses were built, and maintained, by local governments. In private accommodation, new rights were enacted for tenants against their landlords, with some security of tenure and rent regulation, a break on unfettered “freedom of contract”. Compelled by Thatcher’s neoliberalism, the Housing Act 1980 facilitated enfranchisement by introducing a “right to buy” one’s council home. Rights for short term lessees (tenants) and constraints on rent were reduced accompanied by putting tenancies in a standard six-month period, outlining procedure for eviction, and providing a settled definition of “fit for habitation” under the Landlord and Tenant Act 1985 and the Protection from Eviction Act 1977.

Property was increasingly used as a source of finance for business, and similarly became a source of profit for banks, mortgage lenders and real estate investment trusts. This fact drove changes in the market for mortgage regulation. Land use in general was now subject to a comprehensive regulatory framework. The old common laws between neighbours, of easements, covenants, nuisance, and trespass were largely eclipsed by locally and democratically determined planning laws, environmental regulation, and a framework for use of agricultural resources.

Currently, the Land Registration Act 2002 is the primary piece of legislation governing conveyancing. The Act is based on the core concepts of the LRA 1925 but fine tunes them in a way which aligns with modern ideals and societal needs. As in the explanatory notes, the LRA 2002 does not drastically alter the underlying law, but instead alters ambiguous terms, and facilitates a framework which can operate electronically, for example, by enabling documents to be executed electronically.

Conclusion

Today’s conveyancing law emerged because of historical transformations. From medieval peasants who were little more than slaves unable to own property, up to today’s system where we live in unmatched freedom, good health and social stability, modern conveyancing generally treats the lay person well. But time and history does not arbitrarily end, and as long as time continues, conveyancing law must keep pace with changes. There are a great number of challenges society must face in the future, including technology and AI, climate change, and unpredictable political and social upheavals; the nature of property transfer will certainly alter, but how is a question only time can answer.

Edward Downes and Alex Ashbrook are students at the University of Law (Liverpool and Chester).

Edward Downes and Alex Ashbrook

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