By Gareth Lim
This article seeks to compare the doctrines of rectification of the Land Registry in Singapore and England. Specifically, it will examine how the varied doctrines of indefeasibility feed into the different approaches that each system has toward mistake.
One of the largest sources of confusion for a student of land law, and indeed private law as a whole, is the cautious approach that legal systems take in handling the interests of third parties. Intuitively, one would think that any fraud or mistake ought to vitiate an agreement. After all, a rudimentary understanding of property might indicate that unless an “owner” has voluntarily relinquished their ownership while free of vitiating factors, said ownership remains.
However, such an understanding makes two misunderstandings. The first is that ownership is not, in fact, a raw state. Instead, it is a relationship. If we were to say that I own my laptop, there are no physical features on the laptop that would affirm that. Instead, what we really mean to say is that I have a special right to my laptop that no one else has. That right can best be understood as a relationship because the right I have is fluid. If you were to borrow my axe, it would be accurate to say that I am owed it back. However, that right would very quickly disappear if in the meantime, I was revealed to be the Bay Harbour Butcher. The thing to note about relationships is that they are subject to external societal concerns. This is not to say that there can never be a purely rights-based understanding of property, but rather that the nature of ownership must be understood to be fluid.
The second misunderstanding is that unlike any other corporeal property, land has the unique feature of having, in the long run, an infinitely inelastic supply in relation to demand. The impact of that is that the land you “own” will survive long after you are gone, to be distributed by the society that you belong to. As a result, this creates a pressing policy concern that states must navigate when deciding how land is distributed.
The upshot of both these claims is: it is not immediately clear when comparing the rights of an old and new proprietor of land, even when mistake or fraud is involved, that the original proprietor must always win out.
The Indefeasibility of the Register
It would be appropriate at this point to introduce the two systems of land registration that we are seeking to compare. In Singapore, the Torrens system is used. This is characterised by what is known as “Title by Registration”.
Under this system, the transfer of title takes place across two stages. The first stage involves the exchange of contracts. At this point the transferee (B) only has a personal right. The second stage is the registration. This is where title is fully transferred to the transferee, and they acquire a proprietary right in the property.
In Singapore, the primary statute governing the registration of property is the Land Titles Act 1993 (LTA). Here, it is outlined that the rights reflected on the register are indefeasible, meaning that if the register does not reflect an interest, it is almost certain to be treated as non-existent [1]. As such, the transfer of proprietary rights only takes place upon its registration. Until then they are merely rights in equity, held not against the world but only the disposer.
English law takes a distinct approach. Although the Law Commission has outwardly stated that it too has transitioned into a system of “Title by Registration” [2], with the register being indefeasible, the reality is a lot more complex. Under the armour of registration by title is revealed a soft underbelly of overriding interests [3]. Overriding interests refer to the category of pre-existing interests on land belonging to third parties that would be able to overcome a transfer in title. For example, if A were to transfer title to B while X had an easement, if said easement was classified as an overriding interest, B would remain bound by it.
To be clear, Singaporean land law also contains a list of overriding interests. The difference, however, lies in the willingness of English law to accept a wider variety of such interests. As a result, although the Land Registration Act 2002 (LRA) has reduced the number of interests that can be considered overriding, it is still very much possible for an interest not reflected on the register to override the title of a new owner [4].
It must be acknowledged that the distinction between both systems occurs more as a spectrum than a harsh separation. Section 46 of Singapore’s LTA provides for exceptions to the general rule of indefeasibility [5]. On the flip side, as mentioned prior, English law is slowly attempting to reduce the amount of “overriding interests” [6].
Mistake and Fraud in Singapore’s Torrens System
At the contract stage, there is no requirement for a prospective purchaser to inquire into or ascertain the circumstances under which the previous proprietor registered their property. This protection for a prospective purchaser is designed to provide them with certainty regarding their future title, reduce costs and allow for the efficient allocation of property.
However, per section 47(1) of the LTA, this protection is provided insofar as no fraud is committed. Specifically, the prospective purchaser must not have committed the fraud, been a party to it or been privy to it [7]. At this point, it would be useful to recall the two stages of title transfer in Singapore. In United Overseas Bank Ltd v Bebe bte Mohammad (Bebe), it was the view of Singapore’s Court of Appeal that the fraud in question must exist before and at the time where the contract (stage one) was entered into. This is due to the interpretation of s. 47(3) of the LTA [8]. The impact of this is that a prospective purchaser who discovers the existence of fraud after the contract is signed and proceeds to continue with the registration is able to gain the protection of the registry.
It is worth noting at this point that Singaporean law has recognised the existence of the equitable remedy of specific performance as a means of escaping the confines of the LTA. However, for the purposes of this article, we will focus our attention on the process of rectification. This refers to the process of changing the register. This power is given by s. 160(1)(b) of the LTA when the registration has been obtained by fraud or mistake [9]. However, this is limited by s. 160(2), which states that the court has no power to rectify the register so as to affect the registered interest or estate of a registered proprietor who is in possession, unless he is party or privy to the omission, fraud or mistake, or caused or substantially contributed to the omission, fraud or mistake by his act, neglect or default [10].
In Bebe, the court construed section 160(1)(b) as referring to the fraud or mistake of the party who presents the instrument to the registrar. Immediately, one can imagine a situation in which the party has committed neither mistake nor fraud, and as such, rectification is not granted. This is seen as a connection to s. 46(2)(b) to (e), where it is only the mistake of the registered proprietor that is capable of prejudicing the rights of other parties [11]. This unfortunately creates the effect that s. 160(2) is not utilised in deciding upon rectification.
However, in the case of Ho Dat Khoon, the court noted two cumulative requirements for rectification under s. 160. Firstly, the registration must have been obtained through mistake. Secondly, the registered proprietor in possession must be a party to the mistake in consequence of which the rectification is sought. Notably, the second criteria, which takes its language from s. 160(2), allowed a defendant who has been privy to the mistake to have their interest rectified [12]. This widens the number of situations where rectification is likely to be allowed, as on s. 160(1)(b) alone, only a mistake on the part of the registered proprietor would create the circumstances where rectification would be permitted [13].
In conclusion, what is clear is that Singapore’s Torrens system provides for a relatively narrow range of situations in which a mistake could lead to the rectification of the register. In many ways, this represents a discrete trade-off regarding land policy. The difficulty of rectification promotes trust in the register by future owners and creditors alike. However, this comes at the cost of what most would consider fairness, preventing many from receiving an indemnity. Although case law has led to some widening of the criteria, Ho Dat Khoon did not in fact refer to Bebe. It is worth noting that they do refer to distinct situations, with Bebe involving a mortgage while Ho Dat Khoon involved a gift of property. Perhaps the policy considerations regarding the specific interests of creditors and debtors are at play here. After all, although a bank might be the unwitting beneficiary of a mistake, there is some question as to whether or not they could meaningfully be said to have perpetuated it. What is clear, however, is that a relatively narrow route to rectification stresses the primacy of the register, increasing certainty and fulfilling the economic purpose of the Torrens system.
The English View
Section 58 of the LRA sets the baseline for the conclusiveness of the register. It states that on the entry of a person in the register as the proprietor, if the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration [14]. However, Schedule 4, para 2(1)(a) of the LRA allows for the register to be altered by a court for the purpose of correcting a mistake [15].
Interestingly, the LRA has a similar scheme to the LTA in the sense that even if the registration can be shown to be a mistake, it is required that the third party “has, by fraud or lack of proper care caused or substantially contributed to the mistake”. Alternatively, it can be shown that “it would for any other reason be unjust for the alteration not to be made”.
Walker v Burton provides a strong example of both principles in action. Here, “irate” villagers objected to newcomers who had claimed title to land north of the village, rather entertainingly claiming “Lordship” over the manor. It was later proven that such lordship had long ceased to exist; however, the point remained that they had registered title to the land. Ultimately, as they were in possession of the land and not fraudulently so, rectification was denied. On top of that, the court also held that it was ultimately better that the Burtons owned the land and took proper care of it, rather than title being left in limbo, making it not unjust for the alteration not to be made [16].
Originally, English courts, per Barclays v Guy [17], took a similarly narrow view of mistake, focussing on the registration itself. In the event that the registration itself was not a mistake, there would be no rectification granted. The logic behind this would be similar to that of the Torrens system: the finality of a register helped ensure certainty and ease in conveyance.
Eventually, however, the courts rejected the narrow approach. In NRAM Ltd v Evans, the court took advantage of the lack of explicit definition of the term “mistake”, holding that it referred to a situation in which the registrar would have done something different, had the true facts of the situation been revealed to them [18]. Gold Harp Properties v Macleod further cemented this shift. There, Underhill LJ, quoting from the Practical Guide to Land Registry Adjudication, stated that there were two bases by which a change could be made to remove a bank’s charge over the property. These bases were that the registration of the charge flowed directly from the original mistake, or that the charge needed to be removed to fully correct the mistake [19].
Here, we can observe a significantly broader understanding of mistake, allowing for more intervention from the courts to rectify unjust situations. One could argue that this reduces trust in the register as compared to the Singaporean system outlined earlier. However, the impacts of the English land registration project are and have been constantly evolving. With the possible advent of e-conveyancing, it is likely that mistakes that would not have previously been caught would surface before reaching the trial process. As such, it is sufficient to highlight the different philosophical positions that each system of registration presupposes.
Conclusions
At the core of each set of policies, we see a distinction in the kinds of trade-offs that each system is willing to make. Singaporean law favours a narrow view of mistake, personalised to the party presenting the registration. In some ways, one could refer to this as a rather blunt mechanism. However, it ultimately serves a purpose in creating a trustworthy registry in the long term.
In comparison, the English system is far more wide-reaching in the latitude it allows for rectification. Apart from its depersonalisation of mistake, the English system, at its core, is a lot less willing to bite the bullet to uphold the infallibility of HM Land Registry. Notably, English law inserts mechanisms at each point to allow judges to make decisions on a case-by-case basis. Although more flexible, it could be argued that this compromises trust in the register, hindering the register from achieving a more comprehensive status.
Bibliography
[1] Land Titles Act (LTA) 1993, ss 45-49 (SG)
[2] Law Commission, Updating the Land Registration Act 2002 (Law Com No 380, 2018) para 17.3
[3] Amy Goymour, ‘Mistaken registrations of land: exploding the myth of ‘title by registration’’ (2013) 72 CLJ 617
[4] Land Registration Act 2002, schs 1,3 (UK)
[5] LTA 1993, s 46
[6] HM Land Registry, ‘Practice Guide 15: Overriding Interests and Their Disclosure’ (GOV.UK, 26 June 2017) <https://www.gov.uk/government/publications/overriding-interests-and-their-disclosure/practice-guide-15-overriding-interests-and-their-disclosure> accessed 25 January 2025
[7] LTA 1993, s 47
[8] United Overseas Bank Ltd v Bebe bte Mohammad [2006] SLR(R) 884
[9] LTA 1993, s 160(1)(b)
[10] LTA 1993, s 160(2)
[11] Bebe (n 8)
[12] Ho Dat Khoon v Chan Wai Leen [2023] SGHC 326
[13] Teo Keang Sood, ‘Further Thoughts on Indefeasibility in the Land Titles Act’ [2024] Singapore Journal of Legal Studies 253
[14] LRA 2002, s 58
[15] ibid sch 4, para 2(1)(a)
[16] Walker v Burton [2013] EWHC 811 (Ch), [2013] All ER (D) 201 (Apr)
[17] Barclays Bank plc v Guy [2010] EWCA Civ 1396, [2011] 1 WLR 681
[18] NRAM Ltd v Evans [2017] EWCA Civ 1013, [2018] 1 WLR 639
[19] MacLeod v Gold Harp Properties Ltd [2014] EWCA Civ 1084, [2015] 1 WLR 1249
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