Property Law – Preparing for Unintended Revelations

By : Michelle Stevens-Hoare

The Land Registration Act 2002 provides a new right for anyone to inspect and make copies [1] of the register of title and any document kept by the registrar which is referred to in an entry on the register or relates to an application to him. There is also a right to apply for information about the history of entries on the Register [2]. The Draft Rules provide that someone seeking to exercise those rights may make a paper application. The Act enables the making of rules to provide for exceptions to the right and/or to impose conditions, including fees. Inspections may be at a proper office of the Registry in the presence of a member of the Registry or, in some instances, by remote access.

An official (as opposed to office) copy of any such document held at the Registry is to be admissible in evidence to the extent the original would have been.

On the first registration of an estate all deeds and documents relating to the estate must be provided to the registrar, in the case of a leasehold interest that includes the lease and a certified copy [3].

Part 13 of the Draft Rules provides the mechanism for creating an exception to the public right to see and copy any particular document. Documents and/or information contained in documents will be protected if they are designed as “exempt commercial information documents” (“EICD”).

An application may be made for designation of a document that is already with the Registry or when the application is made for an entry on the register that will make reference to the document. It follows it will not be possible to make an application in advance of a document being provided or completed. There is no restriction on the persons entitled to make an application, but it may only be made on the grounds that the document contains prejudicial commercial information. Accordingly, an application could not be made on the basis that a document contains private information, however prejudicial or embarrassing it might be. The application must be accompanied by a certified copy of the document and a certified copy of the document with the prejudicial information excluded.

The registrar must grant an application for designation as an ECID if the applicant has shown an arguable case that the information is prejudicial commercial information unless he considers that the designation would adversely affect the keeping of the register. There appears to be no process for objecting to the application for designation or even the giving of notice that an application has been made. The person who applied for the designation may apply for its removal. Further, the registrar may remove the designation in certain circumstances. The fact of a designation will be recorded on the register.

Where there are multiple applications covering differing sections of a document it is the responsibility of the registrar to produce a composite document incorporating all exclusions. The document held at the registry that incorporates exclusions of commercially prejudicial information is the “edited information document”. The right to inspect and copy will subsist in relation to that document.

Anyone wanting to see the unedited document or parts of the edited material must make an application to do so. The registrar must provide an official copy of the ECID if he concludes that none of the information claimed to be prejudicial commercial information is in fact or that, notwithstanding that status, the public interest in providing the official copy outweighs the public interest in not doing so. The Draft Rules do not appear to provide for an application to see or the release of only part of the information that had been edited out. It is likely that in practice it will be necessary for mechanisms to develop to cater for that. There is no mechanism for the balancing of competing private interests in the access to the information.

Where the registrar has allowed an application to inspect or copy a ECID on the basis that there is no prejudicial commercial information, he may remove the designation of that document.

The information provisions in the Act and the Draft Rules have retrospective effect in the sense that they will apply to documents already at the Registry. There is a transitional provision that relates to leases and charges referred to in the register and documents kept relating to applications. For a period of one year from commencement, unless they are designated as ECID, such documents will only be made available for inspection or copying at the discretion of the registrar.  It follows that applications for designation as a ECID in relation to documents already with the Registry need to be made within a year of commencement.

Unsurprisingly, those connected with investigating criminal, insolvency or tax liabilities have the right to see designated documents upon simple application without needing to justify the application.

References

1. s66, Draft Rules 130/2
2. s69
3. Draft Rule 23