With this we may discuss the following amendments: No. 38, in page 49, line 38, leave out 'obvious on' and insert 'disclosed by'.
No. 39, in page 50, line 3, at end insert—
'( ) For the purposes of sub-paragraph (1)(b), an easement or profit shall be taken to be such as would be disclosed by a reasonably careful inspection if such an inspection would reveal that acts had been done on the land, or advantages had been enjoyed over it, which were in fact done or enjoyed in the exercise of the easement or profit, whether or not such an inspection would also show whether those acts were done or those advantages were enjoyed as of right and not merely by permission of the owner or occupier of the land.'.
The amendment deals with a number of matters relating to unregistered interests that override registered dispositions, specifically with reference to paragraphs 2 and 3. In relation to persons in actual occupation, there is an exception in respect of a number of interests and a question concerning the wording. That is clear from amendment No. 36, which would omit the word ''obvious'' and substitute for it the words ''disclosed by''. It may seem to be no more than a drafting matter, but there is a distinction between what is ''obvious'' on a reasonably careful inspection of land and what is ''disclosed by'' a reasonably careful inspection of land at the time of disposition. The amendment relates not only to paragraph 2(c)(i), but to paragraph 3(1)(b), which refers to easements and profits a prendre and in which the same point arises. I should be interested to know the Minister's response because it is obvious to me that ''obvious'' is not the right word to use.
Amendment No. 39 covers a more important point and refers to easements and profits a prendre. Paragraph 3(1) relates to leasehold interests in land, but does not apply under paragraph 3(2)
''if the person entitled to the easement or profit proves that it has been exercised in the period of one year ending with the day of the disposition.''
An easement or profit could include rights of way and all sorts of other rights such as shooting rights. A whole raft of matters could conceivably fall into this category, which is very large and of enormous practical importance to landowners. People may buy estates and find that they are subject to rights of way, rights of light, rights of passage and other rights that I mentioned earlier arising under private Acts, such as rights of piscary and so on, on which I received a very helpful letter from the Land Registry. We are suggesting that
''For the purposes of sub-paragraph (1)(b), an easement or profit shall be taken to be such as would be disclosed by a reasonably careful inspection if such an inspection would reveal that acts had been done on the land, or advantages had been enjoyed over it, which were in fact done or enjoyed in the exercise
of the easement or profit, whether or not such an inspection would also show whether those acts were done or those advantages were enjoyed as of right and not merely by permission of the owner or occupiers of the land.''.
I could spend a long time on this, Mr. Illsley, but you can be assured that I have not the slightest intention of doing so. The law on the subject is extensive and interesting, and includes matters relating to shooting rights, riparian rights, who owns what up to certain points in a river, and whether it is for navigation or a cut. There are many books on the subject and it would be invidious to go through the whole matter. However, the amendment should be given proper consideration and I have no doubt that the Minister will do so. I look forward to hearing what he has to say.
I agree with the hon. Member for Stone (Mr. Cash). At one level, amendments Nos. 36 and 38 cover drafting matters, but they could have important consequences, which is why I shall resist them. In speaking to those amendments, I shall also speak to amendment No. 39.
The Government share a common objective with the hon. Gentleman: that the Bill should provide that if a buyer knows of a person's occupation or a legal easement or profit because it is patent, he should be bound by it. The issue is: how can that common objective be best achieved? The hon. Gentleman believes that the words ''disclosed by'' will achieve that objective better than the words ''obvious on''. We disagree, and to explain why I must say a little about the way in which the Bill was drafted.
Many areas of the statutes that the Bill replaces have been subject to considerable litigation over many years. When there has been doubt about important provisions and that doubt has been resolved, the answers now form part of the common law. When the answers are clear and satisfactory, the Bill has deliberately been drafted neither to incorporate nor to change the substantive law. That is in the interests of a shorter Bill and avoiding the risk of having been taken to have changed the law.
In the Bill as originally drafted, paragraph 2 represented a partial exception to that rule. There are many practical difficulties in establishing the steps that a prospective buyer needs to take to discover whether land is occupied and whether the person occupying it has acquired rights that will override the sale. The first version of the Bill tried to give some additional explanation. During debate in another place, the Government were convinced that that was a mistake and that the words that had been inserted were not self-evidently clear. Although they were not intended to change what had been established by the leading cases on the matter, there was an unacceptable risk that they might have been thought to do so and thereby give rise to avoidable litigation.
After careful consideration and hard thinking to see whether the wording could be made more helpfully explanatory, the Government decided that the safest way was to use the shortest wording that was closest to the current statutes, because there would then be less risk of attempts to revisit common law decisions that had been found to be clear and workable.
I hope that Conservative Members will accept that approach. Their amendments would, arguably, change the existing law and they are no clearer than what they would replace. Little may turn on the two phrases, but I am not aware of any judicial gloss on the word ''discovered'' in this context, while the word ''obvious'' has been the subject of judicial use.
In the leading cases of Ashburner v. Sewell and Yandle and Sons v. Sutton, the test applied by the judges was whether a defect in title was obvious to an intending purchaser. We consider that the safest course is to use the word ''obvious'' in the Bill because it is a word that has been considered by the courts in a similar context. As far as I am aware, the phrase ''discovered by'' has not had such judicial consideration.
Of course, the hon. Gentleman is right.
The final amendment in this group, amendment No. 39, is unnecessary because, as I have just said, there is already judicial guidance on how to interpret what is obvious on a reasonably careful inspection. The approach to interpretation is the same as for the case law on the question of what does not have to be disclosed to a buyer of land prior to contract. The courts have held that patent defects in title do not have to be disclosed. In the Yandle case, the learned judge said:
''I think he''— the purchaser—
''is only liable to take property subject to those defects which are patent to the eye, including those defects which are a necessary consequence of something which is patent to the eye.''
If a legal easement or profit is one that a seller of the burdened land would have to disclose to a buyer before contract, it will override a registered disposition.
The hon. Gentleman raises an interesting question to which I will return in a short time, if I may. First, I will continue to make the point that I was making.
The hon. Gentleman makes that point extremely well. There will be circumstances where rights such as those will be self-evident. It one sees a shooting party—
If one sees a shooting party, with everyone banging away at the pheasants as they wing across the land, and the beaters, as I understand it, beating the pheasants out of whatever they are beaten out of—
The hon. Gentleman is rendering me valuable assistance. I have never fired a shot at anything in my life, and he obviously has much greater knowledge of such things than I do. In those circumstances, I think that it would be a reasonable assumption that those people were occupying the land as a result of some sort of right. I will return to the point about rights of way very shortly.
A legal easement, such as I was discussing, might occur if at the time of a registered transfer there were a private right of way, the existence of which was patent to the eye. The words ''patent to the eye'' and ''inspection'' cover a multitude of terms here. Someone could be sent to look at the land to see whether paths were clear and maintained. One might see posses of ramblers rambling over it, presumably in pursuit of some existing right of way, or people shooting, as we have already discussed. There are ways in which one might reasonably assume that a right of way existed. If that were patent to the eye, the buyer would be bound by it, even if they did not know details of the particular right under which the way was used, or who the users were.
I hope that that addresses, to some extent, the hon. Gentleman's point and that, in the light of that, he will consider withdrawing the amendment.
I am not convinced by that argument, and I was getting slightly worried about whether the Minister could read the handwriting on the piece of paper that came across, which was patent, obvious and disclosed. I think that we might need to come back to this issue on Report, so I will give the matter some careful consideration. In the meantime, with the proviso that I intend to consider tabling further amendments on Report, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 agreed to.
Schedules 4 and 5 agreed to.