558Property Law

be required to pass the discoverability test if the person entitled to it ‘proves that it has been exercised in the period of one year ending with the day of the disposition’ (paragraph 3(2)).

There are several difficulties with all this. It not only reintroduces the idea of notice into land registration (so reintroducing the very problems that registration is designed to overcome, as we saw in Chapter 14), it produces it in a form that is quite different from (and not apparently superior to) the traditional concept of actual/constructive/imputed notice we considered in Chapter 14. What, for example, is to be the role of imputed notice here? Can it really be intended that an ‘undiscoverable’ easement or profit will be enforceable against a purchaser if she actually knows about it, but not if her solicitor and surveyor know about it but omit to tell her? And what is the justification for protecting discoverable but not undiscoverable easements? The latter could include rights over drainage, water and power conduits that are essential for the reasonable use of the benefited land but that even the holder of the easement does not realise she has. It is difficult to see why the burden of such rights should not pass automatically with the burdened land regardless of registration, and it is surely an unnecessary complication to require the easement holder to prove use within the year before the disposition.

But the most important objection to the introduction of this discoverability test is that it is based on the doubtful premise that the two conflicting principles adopted by the Law Commission in its Third Report on Land Registration (that purchasers should take free from interests not on the register, but vulnerable interest holders should be protected) can best be resolved by limiting both the immunity of the purchaser and the protection of the prior-interest holder by factors relating to the purchaser rather than factors relating to the prior-interest holder. This seems hard on both. As far as prior-interest holders are concerned, a person who cannot reasonably be expected to protect her interest on the register is no less in that position simply because her interest is undiscoverable. As to purchasers, their claim to take free from interests not appearing on the register is not based on justice but on practicalities – this is the best way of ensuring that trading in interests in land is fast, inexpensive and straightforward. If a purchaser’s protection depends in every case on a minute enquiry into what he knew or should have discovered, the object is defeated.

15.4.5. Interests of persons in actual occupation: the 1925 Act

All these arguments apply, and with even greater force, to this category of overriding interest. The 2002 Act formulation of the category is considerably more complex than its 1925 Act equivalent, but it retains two crucial elements from the 1925 Act formulation, so making it necessary to understand both.

In the Land Registration Act 1925, the equivalent category was set out in section 70(1)(g):