| The land registration is an important part in all countries’ legal systems. Its systematic value lies in publicity of the state of rights in real property, and giving the appropriate legal effect, so as to maintain the security and order of real estate transactions. Although the United States and the United Kingdom share the same land system foundation, and many aspects of the American legal system accept and retain the rules and traditions of the British common law, the UK and USA have established two distinct registration systems in the field of real estate, which are namely title registration system in England and Wales, and deed recording system in America. Hidden behind two different registration systems, what are the historical background and the practical policy considerations, how different are the designs of specific legal system, what is the role of rules in solving a particular problem, what is the security system for safeguarding transaction security. These are the main problems which this paper wants to explore.This article consists of three sections:introduction, text and other discussions. The main text is divided into five chapters, with the real estate transactions as the warp, with the legal structure and system analysis as the weft, which follows the historical context, begins with the land system and the establishment of registration in Britain and America, analyzes the formation of deed delivery system in real estate transactions and the transfer of rights in real estate transactions, interprets the legal structure and the legal consequence of real estate registration system, as well as the rules to cope with rights conflict, eventually reaches some apocalypses for real property registration in China.The introduction part mainly introduces the background of selecting the topic and the research object of this paper, the Anglo-American real estate registration system, involves three central words such as real property, transaction and registration. In the context of Anglo-American Law, real property refers both to land itself and things immovably attached to the land, also to real property rights and interests in the land and its attachments. The real estate transaction is the transfer process of real property rights from one to another person. The central issue in real estate transactions is the transfer of real property rights. The registration embodies its static state of facts and dynamic behavior of law, which comes from the rules of law and gives the effect of law. In addition, this introduction part also gives a simple outline for the situation of research relating to this topic, discusses the significance of choosing this topic, defines the methods of the research and probable innovations.The first chapter explains the historical background of the Anglo-American land registration system. The legal tradition and legal concept in the field of real estate are rooted in the oldest British feudalism land relationship in Anglo-American legal systems. The legal relationship mode of tenure makes the emergence of a uniform land law possible, and makes the continuation of the idea that "Ownership" can be segmented between different main bodies possible. American Law follows the idea of "Ownership" segmentation in English law. Based on this, the UK and USA have formed the unique common law system of real property rights, including ownership and possession, rights and a bundle of rights, the priority and antagonism of rights, estates and interests. The estates and interests in land are classified as "legal" or "equitable" in Anglo-American Law, the formation of deed delivery system has experienced the evolutionary process from an enfeoffment ceremony to the modern deed in real estate transactions. By the reform of the Property Law Act1925, the United Kingdom has introduced and improved Torrens Registration, finally established the two-track registration system providing title registration in parallel with charges registration. After attempting to accept Torrens Registration, the United States has found the system not agreeing with itself, and then returned to deed recording. This part analyzes different reasons why Torrens Registration is treated differently in the UK and USA. Afore-mentioned content is an irrecusable premise understood if we want to study the Anglo-American real estate transactions and registration system.Chapter two introduces the transfer of rights in Anglo-American real estate transactions, involving legal matters in two aspects. One is the transfer of rights caused by real estate transaction behavior, the other is the legal protection of the interests of third parties. On the transfer of rights, there are two patterns of transferring land title by deed or by registration. Both charges registration in the UK and deed recording in the USA adopt the former pattern, while title registration in the UK adopts the latter pattern. The country’s selection between the two models is closely related to its own social economic condition, legal tradition and trading practice, but on the value goal and the demand of the society that the transfer of rights needs the publicity of registration, these two kinds of pattern have realized unification. The process of changing property right and transferring land title in Anglo-American real estate transactions can be clearly divided into the two stages of entering into a contract and delivering a deed, which is the equal of "the Principle of Distinction" in civil law. The establishment of modern registration system makes the delivery of deed have different legal meanings in the UK and USA. The delivery of deed still takes on the mission that transferring the title in America’s deed recording, while the delivery of deed is only the requirement of process in real estate transactions in British title registration, the registration is the mark of transferring the title. In the process of the transfer of rights in Anglo-American real estate transactions, there are several law rules such as the doctrine of merger, the doctrine of part performance, the equitable conversion doctrine. These law rules are important parts that provide the rights and obligations between buyers and sellers, as well as deal with specific problems happened, which also show the specific and practical spirit and attitude in Anglo-American law. This part of the research forms the basis of the Anglo-American real estate transactions and registration system.Chapter three describes the legal structure of land registration in the UK and USA. As to the types and functions of registration, both title registration and charges registration exist in the United Kingdom. The title registration identifies ownership, makes public rights and the state of charges, the register is endued with an indefeasibility. The charges registration makes public burdens status in land title, and becomes a good complement coordinate with title registration. There are three types of recording laws in the USA-Race Statutes, Notice Statutes and Race-Notice Statutes. Although they cannot determine the ownership, these three models have both goodness and shortcoming, their functions lie in the publicity of transferring interests, providing a public access way to search title, and giving priority to the purchaser against adverse claims. In the scope of registration, the registrable estates under British title registration include freehold estates, leasehold title more than seven years, rentcharge, franchise, and profits, etc. The registrable interests under British charges registration include pending actions, annuities, writs and orders affecting land, deeds of arrangement, land charges. Very important among these are land charges. It is overriding interests and minor interests that solve the problem of balancing the interests of buyers and the third parties. The recording object of America’s recording law is the deed that creates or transfers interests in land. Except for other special deeds that can not be registered and interests that can not be protected by the recording law, nearly all deeds of property right trades are freed to be recorded. In the carrier of registration, the UK has a unified land registration agencies, set up a unified register including property register, proprietorship register and charges register. The register follows the Mirror Principle, the Curtain Principle, and the Insurance Principle, which enables it to reflect the land itself, the proprietorship and charges in the land after the registration of land title. The land certificate and charge certificate are demonstrations of the privately owned land rights in the UK. The creation of electronic conveyancing and registration system presents the development trend of real estate registration in the UK. The United States has established the recording system like a specialized library. In this recording system, the real property registration institutions copy all the documents of transferring real property, file them, keep them, note appropriate index in the sequence of their recording, country land records, so that the buyer in real estate trade can commission a title search of the public records. The records can neither reflect nor decide the proprietorship. In the registration procedure, the British title registration adopts strict substantive examination with the rights and burdens status recorded in the register, which reflects the purposes of simplifying real estate transactions and maintaining transaction security in English law. The deed recording in the United States leaves the process of determining true and valid title exclusively to private searchers, but provides a systematic protection of transaction security by the mechanics including the notarization or witness of deeds, the formal examination of the recorder’s office, filing and indexing, procedure for searching title, and the system of title assurance.Chapter four describes the legal consequence of land registration in the UK and USA. The UK adopts "the Doctrine of registration Effectism" under title registration and "the Doctrine of registration Antagonism" under charges registration, enduing the title registration with "an absolute indefeasibility", which arises without the prerequisite of bona fides of third parties in real estate transactions. From the viewpoint that only the owner of registered estates has possessed the land, and acquired the title without fault, he can obtain"an indefeasible title", the indefeasibility of title registration is also "an limited indefeasibility". The American recording law hasn’t endued this recording system with an indefeasibility, while adopts "the Doctrine of recording Antagonism". The records can neither determine the proprietorship nor true or valid title, but the law will protect the interests in the recorded deed against any later buyer. By the system consisting of "the Doctrine of recording Antagonism", the marketable title acts, and the title assurance, the American deed recording provides the systematic protection of transaction security. The registration errors under the title registration are that the register can not accurately reflect the situation of real property rights. The legal remedies of registration errors under the title registration can be performed by altering the register and be compensated by the State in the entity and procedure. The recording errors under the deed recording are that the records can not make public the state of trade title. The probable causes of recording errors under the deed recording include improperly indexed document, defective documemt, documemt outside the "chain of title", etc. The title insurance company acts as the role of the State that guarantees and compensates the insured owner in title registration, which forms the fundamental guarantee for the normal running of the recording system in the USA. Thia part also notes the legal relationship between registration errors and transaction security protection, that is, different legal systems differ in trade-offs between static security and dynamic security, but the result is the integrated use of a variety of methods. Chapter five is about the rules for resolving rights conflict in the course of real property registration in Anglo-American law, introducing the common law priority rule and its exception-the bona fide purchaser doctrine, the equitable doctrine of notice, explaining their respective meanings, the elements, and the different applications between the British and American systems of law, giving a comparative review and analysis. The traditioan first-in-time rule is an important rule for resolving the priority protection between conflicting title claims. In the UK, the priority rule can be applied as basic legal rule by the registration acts’provisions about the judgment of application time, and can be excluded as specific exemptions as well as by the registration acts’provisions. In the USA, the priority rule can be distinguished and used by the provisions of different types of recording acts according to the order of "notice" or "recording" in real estate transactions. A bona fide purchaser is a subsequent purchaser who pays valuable consideration for an interest in real property, without any notice of an interest that a third party already holds in the land, who provails. Whether in the field of registration law or not, the above rules are very important to resolving the rights conflict problem of real property in the case of two or more conflicting interests.The other discussion is a thinking on this study, points out that the system value of real estate registration in our country is to maintain the efficiency and security of transaction. Learning the experiences and practices of Anglo-American real estate registration, we should establish the systematic protection of the real estate transaction security, concern with the application of "bona fides" and the protection of "possession" when specific legal dispute has happened, center on the land, apply the principle of combining the land and buildings, establish the special Administrative Center of real estate registration, achieve the uniform of registration organ, registering books, information platform in real estate registration, promote the electronic development of real estate registration. |
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