2 Registration Flashcards
What are some third party interest examples
Neighbour covenants Banks mortgage Tenants (lease) Partners / family interest arising under trust Neighbours easements
Why do third party interests in a property matter
Because a new purchaser of that property will be bound by those interests
What did the introduction of registration do requirements of a deed, and how was this passed
Registration reduced the required 60 years worth of deeds to just 15 years worth of deeds
This was passed via the LPA 1969 s44 (see section for explanation)
What is the concept of priority?
Whether a third party is bound by the interest
A partners interest arising under trust also makes the purchaser bound by the interest
Describe the difference between legal and equitable rights / interests
Legal rights - First in Time:
- bind the world
- enforceable against successor in title (new purchase)
Equitable rights - First in Time if not ‘equity’s darling’
- an equitable interest is binding on the whole world except the ‘bone fide purchaser for value of a legal estate for value without notice of the equitable interest’ (Pilcher v Rawlins (1872))
Describe the key concept of the doctrine of notice
Involves both actual notice, and constructive notice
Actual notice:
- does not have to be the owner, could be an agent (Lloyd v Banks 1868)
Constructive notice:
- LPA 1925 s199(1)(ii)(a) - within his knowledge or would have come to his knowledge if such inquiries and inspections had been made or ought to have reasonably been made (or agent)
Describe the unregistered land system
Is complex and has weaknesses:
Land registration act 1925 - involves registration of titles (+ may be more than one title)
Land charges act 1972 - (replaces Land charges act 1925)
Describe what the Land Registration Act 1925 governed / involved
- registration of freehold and long leasehold estates
- registration of mortgages and charges (restrictive covenants, easement)
- overriding interests - not on the register but still protected
- state guarantee
Describe what the Land Charges Act 1972 governs / involves
- reduces the scope of the doctrine of notice
- registration of a charge is notice (LPA 1925 s198 (1))
- when dealing with a beneficial interest under a trust, purchaser will be bound unless purchaser is Equity’s Darling
Describe the effect of the enactment of the Land Registration Act 2002
- moved away from registration of title to title by registration where it ‘will be the fact of registration and registration alone that confers title’
- a means of managing enforceability of property rights in land
- a way of tackling complexity, by providing a central record of title to land
- each individual register describes the estate and tells us about non-ownership rights over the land
- see Land Topic 2 notes on pages iCloud folder
What were the ambitions / purposes of the LRA 2002
- facilitate + speed up conveyancing
- protect purchasers
- assure security of land transactions
- bring more titles within the registration system
- efficiency
- transparency
- certainty and simplicity
Three principles:
- curtain principle
- mirror principle
- insurance principle
Describe the mirror principle of the LRA 2002
- register is an accurate and conclusive reflection of interests affecting the land (but there are overriding interests)
- the deed will reflect all the interests in that one piece of property / land
Describe the insurance principle of the LRA 2002
- accuracy of the register is guaranteed
- gov funded guarantee that if registry makes a mistake with an interest then the individual adversely affected will be compensated
- but overriding interests are excepted
Describe the curtain principle of the LRA 2002
- purchaser is not concerned w matters behind the entries on the register
- trusts which affect land will not be entered on the register
- overriding interests once again
Outline the significance of the LRA 2002
- transforms fundamental basis of entitlement to land from possession or deeds as good root of title to registration as the source of title
- under LRA 2002, the basis of title .. is not possession, but the register itself’ - Law Commission
Describe the process of an application for first registration of title (Part 2 of the LRA 2002)
- if a piece of land is passed between two purchases it HAS to be registered, same with a lease for land
- if this not complied with, the legal estates stays with previous owner, and the equitable estate (only), moves to the new purchaser, making the transfer of estate void at law, so purchaser only gets equitable estate, sometimes without even realising they do not have the legal estate too, so do not officially own the land
- having just the equitable estate of a property / land means it’s still yours to do whatever with (live in, have friends in etc), just cant sell it without legal estate, so some only notice they didn’t legally transfer legal estate when purchasing, when they try to sell it
- compulsory registration (increase in numbers)
- transfer of a qualifying estate (valuable consideration, any consideration, gift, order of the court, partition etc)
- a lease greater than 7 years, or taking effect after 3 months
- non-compliance (s7,1)
Give a brief overview of trusts
- An official estate in land is made up of both the legal estate (title) (original owner) and the equitable estate (purchaser)
- it matters that both are owned as you CANNOT ‘sell’ (transfer) your house to another without also owning the legal estate, as well as just your equitable estate
What does part 3 of the LRA 2002 govern
Dispositions of registered land (registrable dispositions and the interests protected)
Eg section 27 (required to be completed by registration to operate at law)
What is meant by section 27(d), (e) and (f) of the LRA 2002
(d) = easement
(e) = rent charge and right of entry
(f) = mortgage
How is registration done?
Completion of the TR1 form - beware the registration gap
How do we transfer a legal estate?
- formalities > registration > transfer of the legal state:
formalities:
- exchange of contracts compliant w the LP(MP) Act 1989 s2
- must be by deed (LPA 1925 s52)
- must comply with the requirements of (LP(MP) Act 1989 s1
Registration:
- to take effect at las it must be completed by registration (LRA 2002 s27)
What happens if registration is not completed?
= LRA 2002 s7
and s8 LRA 2002 - making good a transfer: retransfer, regranted, recreated and liable for costs
What is an express legal easement?
- where owner of land can allow a neighbour / person to have a legal right of way to cross his garden eg to get to their own land
How do you create an express legal easement?
By going through the stages: formalities > registration > creating an express legal easement
Formalities:
- must be by deed (LPA 1925 s52)
- must comply with the requirements of LP(MP) Act 1989
Registration:
- to take effect at law it must be completed by registration (LRA 2002, s27)
If completed by registration, the registrar will enter a s32 notice on the register (LRA 2002 s38)
The owner of the land will then benefit from the express grant of a legal easement which is protected by notice
Describe the relationship of registration, third party interests and priority
Say owner wants to sell his house to a purchaser, but there are many third party interests in the property (eg neighbours easements, neighbour covenants, banks mortgage, tenants (lease), partners interest arising under trust, etc), it is poss that purchaser may be subject to and bound by those previous interests
What section governs the effect of dispositions on priority in the LRA 2002
s29
What is the effect of the LRA 2002’s s29 on a purchaser of an estate that has third party interests
- if the transfer of the estate (freehold or leasehold) is made for valuable consideration, and completed by registration, the estate is free of any interest which is not protected on the register by either a registered charge or notice, OR inclusion in schedule 3 of LRA 2002
- so purchaser would only be bound by original owners legal easement (one of the estates third party interests) as it is protected by s32 notice
How are interests protected
- already seen some interests that have to be completed by registration (LRA 2002 s27)
(Eg an express easement (s27(d), a legal charge (a legal mortgage)(f), or an express right of entry and estate charge (e) - if these interests are completed by registration they are protected by s32 notice
- see s33 (LRA 2002 part 4 notices and restrictions) for interests excluded from notices
How are interests protected that don’t involve a s32 notice
Dispositions of registered land part 3 - LRA 2002
Registrable dispositions, interests
What if an easement did not comply with the formalities or was not registered?
- if not completed by registration, it is an ‘equitable easement’
- the owner can protect the interest by applying for a s32 notice
What does the LRA 2002 schedule 3 partly govern
- unregistered interests which override registered dispositions
- what about the mirror principle?
- why do these interests exist?
- rights arise informally (trusts) - to require registration would defeat the policy
- when people occupy land they are unlikely to appreciate the need to register their interests
- these interests are discoverable on inspection of the land (doctrine of notice)
Describe schedule 3 of the LRA 2002 on short leases
- leasehold estates in land
- this is a leasehold estate in land granted for a term not exceeding seven years from the date of the grant, except for -
(à) a lease the grant of which falls within s4(1)(d), (e) or (f)
(b) a lease the grant of which constitutes a registrable dispositions
Also see s4
What else does LRA 2002 schedule 3 govern
Legal easements (s3(1))
Interests of persons in actual occupation (s2)
What are the exceptions to interests of persons in actual occupation, set out in sch 3 s2 of LRA 2002 and their cases if any
- rights not disclosed on enquiry
- enquiries must be made - Thompson v Foy 2009
- enquiry need not be made by purchaser personally, agent can make enquiries - Winkworth v Edward Baron Development Co Ltd (1986)
- ‘visible signs of occupation which have to be obvious on inspection’ - Thomas v Clydesdale Bank 2010
- visible signs should be sufficient to put the person inspecting in enquiry
Describe the case of Strand Securities v Caswell 1965
An interest belonging at Time of disposition in actual occupation, so far as relating to land of which he is in actual occupation, except for an interest in the land the person occupies (must be a proprietary interest not personal interest (permission is a license and personal))
Describe the case of Williams & glynns bank ltd v Borland 1981
Ordinary meaning of the word ‘in actual occupation’
What is required for in actual occupation is a physical presence
Describe the case of Lloyd’s bank plc v Rosset 1989
What constitutes actual occupation depends on the nature and condition of the land
Describe the case of abbey national building society v cann 1991
No need for continuing and uninterrupted physical presence on the part of the person claiming actual occupation but there must be some degree of permanence and continuity (more than mere fleeting)
Describe the case of chokkar v chokkar 1984
If absent, the person must have the intention to return (for them to be classed as in actual occupation)
Describe the case of Stockholm finance ltd v garden holdings inc 1995
For actual occupation - ‘there must come a point at which a persons absence from his house is so prolonged that the notion of continuing in actual occupation’ is unsupportable (15 months)
What does LRA 2002 section 40 govern
Restrictions and nature
Describe the concept of overcoming overriding interests overreaching
- interests that override can be overreached
- overreaching: if a purchaser of land held on trust of sale who paid the purchase money to two trustees would take free of the beneficial interests even if the beneficiaries are in actual occupation of the land at the relevant time (LPA 1925 s2)
- overreaching is a doctrine that says that when land is purchased, if and only if certain conditions are met, certain equitable interests cease to affect the land
