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This focus on relativity of title rather than absolute title requires some explanation. The nature of our civil justice system clearly has something to do with it, whether as a matter of cause or effect. Our civil courts have evolved as forums for settling disputes between the individuals who come before the courts, rather than as truth-finding tribunals, and consequently they are ill-equipped to enquire into the rights and interests of people who are not present before the court. This is conspicuously true in relation to property disputes. To be sure of producing a definitive answer to the question ‘Who owns this book?’ or ‘Who is entitled to possession of this land?’ you need an inquisitorial rather than an adversarial system. In a system such as ours where the only information the court has is that provided by the opposing parties, it is perhaps safer for the courts to confine themselves to relative rather than to absolute entitlement.
However, it would be misleading to think of property law solely in terms of litigation. In a private property law system one of the main functions of the law is to regulate the buying and selling of property interests. At first sight, a system geared towards assessing relative strengths of titles rather than discovering the true owner might appear rather inappropriate for dealing with such straightforward commercial transactions. If you are proposing to spend a large sum of money buying a picture or a house or a car, you want to know that you will get an absolute title, not just one that will stand up against some but not all comers. And, by the same token, if you want to mortgage your interest in your house to a building society, you might expect the building society to insist that you demonstrate absolute entitlement to the land, not merely an entitlement which may or may not be vulnerable to other as yet unspecified claimants.
However, on closer examination, the distinction between absolute title and relative title is less great than at first appears. The truth is that absolute title is in practice somewhat elusive. Property interests are, after all, abstract things, even though the subject-matter of the interest (the picture or the car or the house) may be concrete enough. How do you prove entitlement to an abstraction? In fact, we rely principally on three things – possession, provenance, and registration – but, as we shall now see, none of these can be guaranteed to locate absolute entitlement in all cases.
10.4. Proving title
As we have already seen, you might be entitled to a property interest because it originated in your hands or because it was transferred or granted to you from the previous holder by an authorised transmission. Proving your entitlement in either of these cases is a different matter. In fact, modern legal systems have had to evolve fairly elaborate rules and conventions about proving title. Without such special provision the difficulties in proving title would be formidable: to be completely certain of obtaining an absolute title, any prospective purchaser of your property interest would need to be satisfied, if you claim to be the original title holder, that
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the facts which in law give rise to title by original acquisition did indeed occur and that you have not since then transferred your interest to someone else, or granted away any subsidiary interest. And, if you are claiming to be entitled as a successor of the original title holder, your prospective purchaser would in addition need proof that you acquired your interest from someone who was then entitled to it, who in turn acquired it from the legitimate holder, and so on right back to the original title holder.
In most cases, therefore, conclusive proof of entitlement would be prohibitively expensive, if not impossible, to provide. A legal system that wants to encourage a market in property interests must therefore adopt mechanisms and rules that make it safe for purchasers to assume that apparent owners are absolute owners, or at the very least lessen the risks of a successful challenge to a purchaser’s title. In our system we rely largely on registration and possession, buttressed by conventions about proving provenance and by limitation of action rules. Each of these will be considered in turn.
10.4.1. Role of registration
At first glance it might seem that registration could provide a complete answer to the problem of proving title. If we had a universal and unchallengeable register of all property interests in all things, then in theory all problems about title and relativity of title could be made to disappear. Registration itself could be made the unique title-conferrer, so that, if you were named in the register as holder of a particular interest, you would be the legitimate holder of it, and if you were not, you would not. However, this is simply not feasible, nor would it be desirable in practice even if it could be achieved. There are a number of reasons for this. The first is that registration is appropriate for surprisingly few types of property interest. One problem is that any register must be updated every time a dealing with the property occurs, and every update takes time and costs money. This makes it pointless to require registration of interests in things which are worth less than the cost of making an application for registration, or in things which are so ephemeral that they will have ceased to exist before the process of registering transfers in title is completed, or in things so frequently exchanged that they change hands faster than the registry can record changes in title. Another problem is that, in the case of tangible things, registration cannot work unless each individual thing is easily distinguishable from every other like thing. This means that registration is ruled out for all types of tangible property except those where each individual item is unique (such as pieces of land, or works of art, or racehorses) or can be made so by fixing on an identification mark or name plate (so, for example, it would be feasible to set up a system for registration of car ownership, although we have not yet done so in this country).
Even where registration is feasible and otherwise desirable, there is a fundamental problem about making the register unchallengeable. This is that any registration system is necessarily parasitic on some other title-proving system:
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the registrar must know whom to enter on the register. In any system, if I wanted to be registered as entitled to all hitherto wild rabbits in the country, or to the fee simple interest in my neighbour’s house, then presumably I would have to produce to the registrar something like the captured rabbits, or some evidence that my neighbour had duly transferred his fee simple to me. It follows that, even in the case of fully registrable property interests, it is impossible to achieve a total identification between the ‘true’ owner and the registered owner. At any one time there will always be some people entitled to be registered (because they can produce the necessary proof to the registrar) but not yet registered, and others who are registered but are no longer, or were never, entitled to be (because they have since sold their interest, or gone bankrupt, or were entered on the register by mistake or by dishonesty or fraud). One of the most difficult questions that any registration system has to resolve is the extent to which it will disregard the claims of the ‘true’ owner as against those of the registered owner. There is little point in having a registration system at all if a registered owner can always be defeated by a ‘true’ owner. On the other hand, few people would find acceptable a system whereby the register is always conclusive evidence of title (so that, for example, you and your neighbour have to swap houses because the registrar inadvertently confused the numbering of the houses). Compensation from the state or the registrar for any loss caused by a ‘mistake’ in the register can of course increase the acceptability of such a system, but it reintroduces the need to be able to prove entitlement to an interest (and hence entitlement to compensation for its loss) by some means other than entry on the register.
For these reasons it is not feasible in practice to register all property interests, nor would it be desirable to do so even if it was feasible, and even in the case of property interests which are subject to registration, other methods of proving title will still be relevant to varying degrees. We look at registration in some detail in Chapter 15, but here it is sufficient to note that at present in this jurisdiction we have relatively little registration compared to other jurisdictions. We have fairly sophisticated registration systems in operation in relation to some intellectual property rights, an as yet uncompleted registration system for land (which even when completed will provide for registration of some but not all interests in land), and virtually no registration at all for any kind of interest in chattels other than aircraft and ships. And, in most if not all of our registration systems, the correctness of the register can be challenged on the grounds that it does not reflect the ‘true’ ownership of the property interests recorded there, as we see in Chapter 15.
Registration, then, necessarily has only a limited role in proving titles. What English law has traditionally relied on instead is possession, backed up by conventions about proving provenance and by limitation of action rules.
10.4.2. Possession as a root of title
We have already seen that possession of a thing gives a good title to an interest in that thing, which can be defeated only by someone who can prove that they have a
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better right to possession of that thing. In other words, simply by virtue of being in possession of a thing, a person acquires not only a right to possession but also a good title to an interest in the thing, effective against all except those who have a better title. This rule that possession confers title is central to our title proving system. Whatever the rationale of the rule (and we shall be looking at that more closely in the next chapter) its effect is that the outside world can, for the most part, safely assume that apparent owners are actual owners. And, for present purposes, the important point is that someone offering to sell an interest in a thing can prove an entitlement to the interest simply by demonstrating that she is in possession of the thing. Of course, the value of her entitlement (i.e. the price a buyer would be willing to pay her for the interest) will vary depending on the likelihood of there existing someone with a better title who is able and willing to challenge her title. The role of provenance and of limitation of actions is to diminish the risk of a successful challenge.
10.4.3. Provenance
In practice, the prospective seller who is in possession of a thing can best show that there is unlikely to be anyone anywhere with a better title to it if she can show its provenance – in other words, if she can explain the origin and subsequent history of the thing, tracing the devolution of her title down from that of the original interest holder. So, for example, you can prove almost conclusively to a potential buyer that no one has a better title than you to a cake in your possession if you can prove that it was sold to you by a baker and that the baker baked it out of his own materials using his own labour which he had not contracted out to anyone else. The difficulty of eliminating all possibility of the existence of a better title is apparent even from this simple example, if only because of the regressive nature of the enquiry, and the problem of proving the negative (for example, that the baker had not already sold the cake to someone else before he took your money for it, that you did not buy it as agent for someone else, that you did not sell it to your companion when you left the shop and then offer to carry it home for her, etc.). However, as is equally apparent, it is fairly easy to achieve an acceptably high degree of probability that no one has a better title in such a case: in fact, in the real world, few prospective cake buyers would bother even to ask you where you got the cake from, never mind enquire into the ownership of the baker’s labour and materials.
As a general rule, the more valuable the thing, the more likely it is that a purchaser will want to investigate the seller’s title to the thing, going beyond the fact of possession and enquiring into the provenance of the seller’s interest. In the case of goods not subject to registration whose value does not warrant the cost of elaborate investigation, most buyers are happy to take a risk and rely on possession, particularly where there is nothing in the surrounding circumstances to arouse suspicion (compare, for example, the enquiries you would make before buying a car radio in a pub – assuming you were anxious to obtain an unchallengeable title – with those you would make if buying the same radio from a shop).