General Principles: Registered and Unregistered Land

Question 1

Actual Occupation

Answer 1

• consider the meaning via following cases
  A) Chokar v Chokar
• husband sold house whilst wife was away (in hospital giving birth)
• buyer tried to stop her returning but she was in occupation on day of registration
• her belongings had been there throughout
• held that wife had been in actual occupation at time of transfer therefore had binding overriding interest
• temporary absence, therefore, will not necessarily prevent a person from being in actual occupation
  B) Link Lending v Bustart
• woman suffering from mental illness was residing in a care home at time that her own property was sold
• court held she was in actual occupation of her own property
• this was based on the specific circumstances: her furnished home to which she intended to return, she continued to visit property, she regularly paid bills
  C) Stockholm Finance v Garden Holdings
• foreign princess who lived abroad and never visited her house was held not to be in actual occupation, despite fact she furnished house and had paid bills
• property not occupied to sufficient extent
• while having your belongings in a property may help prove actual occupation (Chokar; Link Lending), it is not sufficient in itself to constitute actual occupation (Stockholm Finance)

Question 2

Is it possible for someone else to be in actual occupation on your behalf?

Answer 2

A) Note Sch 3 para 2 LRA states that in order to have an overriding interest person must be in actual occupation “at time of transfer deed being executed” (Abbey National v Cann)
B) Strand securities v Caswell
- held that the owner of the flat could not be in actual occupation through his step-daughter’s residence
- she was occupying for her own purposes rather than the owner’s
C) Abbey National v Cann - it was said (obiter) that live-in caretaker could occupy on behalf of an employer

Question 3

Equity’s Darling

Answer 3

A) bona fide purchaser for value of a legal estate without notice
bona fide = purchaser must act in good faith
purchaser = any person acquiring an interest in the land
value = money/money’s worth
legal estate = legal freehold or leasehold estate - NOTE” an equitable estate is sufficient; and
without notice = without one of three types of notice:

1. Actual Notice - purchaser actually knows of the interest (s199(1)(ii)(a) LPA 1925
2. Constructive Notice - purchaser will have constructive notice of all interests reasonably discoverable by inspection of the property (Hunt v Luck)
   - includes a duty to enquire about potential interests (s199(1)(ii)(a) LPA 1925)
3. Imputed Notice - notice received by purchaser’s agent e.g. solicitor assisting land purchase
   - if agent has actual or constructive notice, purchaser willl be held to have imputed knowledge (Kingsnorth Finance v Tizard: if purchaser or his agent find evidence of someone’s presence and fail to make enquiries they will not be able to rely on this doctrine (s199(1)(ii)(b) LPA 1925)

Question 4

Doctrine of Notie

Answer 4

A) enforceability of certain equitable interests in unregistered land created before 1926 still depends on the old doctrine of notice.
B) if purchaser is bona fide purchaser of legal estate for value without notice (Equity’s Darling) then he will not be bound by that interest
C) however, if purchaser is not Equity’s Darling he will be bound by it

Only the following interests depend on the old doctrine of notice for their enforceability:

1. beneficial interests under a trust (BIUT)
2. those expressly excluded from LCA 1972: pre-1926 equitable easements and restrictive covenants
3. interests arising by estoppel (Ives Investments v High)