Formalities and Registration Flashcards
Functions of formalities
Evidentiary function
Cautionary function
Channeling function
Are formalities confusing?
Yes:
- leases under 3 years do not need a deed [s.54 LPA], but over 7 they do [s.27 LPA], so in between is optional [s.52]
- equitable interests cannot be registred
- equity confuses the seemingly clear list of what needs to be registered [tranferring an estate, grants of terms of years absolute, easements, and charges]
- LPMPA 1989, s.2 = contarct for sale must be in writing and in one document - so if you want to get out of it, argue that there were terms agreed upon not in the singular document
No:
- most leases are below 3 years so usually not needed to be registered, only the unusual ones
Title by registration:
- LRA 2002, s.27 = you don’t get a legal estate until it is registered = strong mirror image rule
- LRA 2002 s.58 + s.17 = if it shouldn’t be registered you get the title anyway = title promise/indefeasibility of titles
- s.23 + s.24 = Owner’s powers which you only get upon registering
- NRAM v Evans = once on the register, it is permanent , so assess a mistake at the time of registration [VOIDABLE becomes VOID at this stage by the court]
Registration of title
- The title to the interest comes from elsewhere and not the notice itself = inheritance
- some interests cannot be registered despite the parties’ intentions to do so, such as trusts, equitable interests and leases under 3 years [s.33(b) LRA 2002]
- Gold Harp v Macleod = mistake enompasses all subsequent transactions
- Still get land despite not registering it = If the process stops before registration then it goes to equity [express trust, reliance, detriment] – equitable rules exist to prevent injustice
Equitable interests
CANNOT BE REGISTERED
Express = must be in writing [intention based]
Constructive or implied
Proprietary estoppel = reliance based [can’t be used to enforce a contract (Yardley v Gotts) but to prevent injustice when assurance, reliance, and detriment occurs]
Principles of registration
- You cannot give away what you do not own = nemo dat quod non habet - based on the right to exclude
- Mirror principle = the register is exact, so by looking at it you can tell who owns the land
- Curtain principle = some things do not matter to purchasers so they do not need to go on the register
- Insurance principle = compensates people when mistakes arise, however, it conflicts with the mirror principle which denies that mistakes ever occur as the register is absolute
LRA 2002
Owners’ Powers: s 23, 24 [can begin to act like the owner once signed by not actually on the register]
Registrable Interests: s 27
Priorities: ss 28, 29–30, 116, Sch 3
Notices: ss 32, 33 [lesser interst ont the register]
Restrictions: ss 40, 41
Alteration and Rectification: s 65 and Sch 4
Indemnity = s 103 and Sch 8
Altercation + Rectification
- A change in the register is called an alteration [A] = correction of a mistake, which prejudicially affects the title of the registered proprietor
- A certain type of change is called an rectification [R] = loser gets indemnity
What is a mistake?
Mistake = undefined – NRAM v Evans [2017] = it is suggested that there is a mistake when the registrar would have done something different had they known the true facts at the time
Macleod v Gold Harp Properties = CoA states that the power to correct a mistake has to include the power to correct subsequent transactions
How Mallory messed up Altercations and Rectifications
Mallory 1:
- There was a mistake, an indemnity should have gone to Cheshire Homes, as Mallory was in actual occupation
- Chowood’s complicated this as it dealt with the issue in equity and in law
- Arden LJ = s.58 allowed Cheshire Home to have the legal title and Mallory to have the equitable title as the true owner as Cheshire Homes had become registered
- Overruled in Swift = as it is per incurium [conflicts with a binding legal authority – “The legal title carries with it all rights” – Westdeutsche Landesbank Girozentrale v Islington LBC]
How Mallory messed up Altercations and Rectifications
Mallory 2:
- Arden LJ decided that upon registration of Cheshire Homes, Mallory obtains a right to rectify the register, which is a proprietary right – no authority had said so before
- However, Swift dealt with this also, they found a way to get an indemnity by another path:
- Section in Schedule 8, which deems it to be prejudicial when there is forgery
- the Law Commision had a proposal for reform: get rid of the fact that its proprietary and change the act to say that after 10 years, you can’t rectify anymore – However, none have been enacted.
Advantages and Disadvantages of formalities
+ certainty = mirror image rule means that the register is absolute
+ not all rights have to be registered so commonly people do not have to put the work in [leases under 3 years do not need to be registered - s.33 LRA]
+ they protect purchasers [check in Boland and from angry beneficial interests, declare in Lambert, and sellers protected by the Brocklesby principle in Wishart]
- formalities mean you get your right, however, this can be overriden so work and money wasted = Flegg: all rights suseptible to be overriden
- confusing = Lambert [and unfair] and Mallory shows that even judges get confused as this case caused issues that had to be sorted out in Swift leaving it ‘not authoritative’ Watterson and Goymour
When formalities are not followed
- equity can step in for part performance [vs. contract must be in one document]
- Constructive Trusts are an exception to s.2 LPMPA 1989 - Matchmove Ltd v Dowding - so if there was an express agreement between parties, this was relied upon, to ones detriment, it would be unconscionable for the defendant to deny the claimant’s ownership
= the difference between PE and CT is that, CTs must have a stronger promise, such as a promise for a specific title - if this is met, you can prove a contractual agreement
