Land 5

Question 1

What is land registration?

Answer 1

The process of distilling all the relevant information from the title deeds (i.e. who owns it and any limitations that apply to it) and putting it into a publically available register of title including the:* property register* proprietorship register* charges registerAn exclusive reference number is allocated called the ‘title number’ and a title plan is produced.

Question 2

On the occurrence of what must all land be registered?

Answer 2

A triggering event after 1 December 1990

Question 3

Can land be registered voluntarily?

Answer 3

Yes

Question 4

What are the six main triggering events?

Answer 4

1. Grant of first legal mortgage2. Conveyance of sale of freehold land3. Assent4. Deed of gift5. Grant of lease exceeding seven years6. Assignment on sale of a lease with more seven years remaining

Question 5

What is the Register conclusive evidence of?

Answer 5

That the registered proprietor is the estate owner and therefore entitled to deal with the land

Question 6

Within what time limit of the triggered event must an application for registration be made with HMLR?

Answer 6

Two months

Question 7

What two things happen if registration is not applied for within the two month window?

Answer 7

1. Transfer of legal estate is void2. Legal estate reverts to the sellerIn the case of leases and mortgages, the seller holds the legal estate on trust as a bare trustee whose only duty is to follow the (lawful) instructions of the beneficiary of the trust in relation to trust assets.

Question 8

Upon whom does the cost of remeding the failure to register fall (i.e. cost of retransferring, regranting or recreating the legal estate)?

Answer 8

On the party in default, who will also be liable to indemnify the other party in respect of any liability reasonably incurred and arising from the failure to register.

Question 9

What must the Registrar have to extend the two month window for first registration?

Answer 9

Good reason to do so

Question 10

What is the impact of a failure legal registration becoming an equitable estate?

Answer 10

It will lose priority to other transactions which create interests in the estate before defect is cured

Question 11

What happens when HMLR completes the registration of a disposition?

Answer 11

A ‘Title Information Document’ is issued, which is an updated copy of the register reflecting the recentdisposition(s). It is possible to download most registers of title, title plans, and documents referred to in the registers of title. In this instance, the copy of the register of title is called an ‘official copy’.

Question 12

How does HMLR decide on which class of title to award?

Answer 12

HMLR will investigate the title documents presented to be satisfied that the estate owner has a good title and assign the title to a certain class, depending upon the contents of the documents examined. The Proprietorship Register details the class of title awarded by HMLR and the Registered Proprietor (holder(s) of the estate).

Question 13

What are the five classes of title?

Answer 13

1. Absolute freehold2. Qualified3. Possessory4. Good leasehold5. Absolute leasehold

Question 14

Absolute freehold title is the best kind of title. What are the only two interests absolute freehold title is subject to?

Answer 14

1. Interests on the register, e.g. charges, notices, restrictions2. Overriding interestsNote, the legal estate includes all interests subsisting for the benefit of the estate e.g. implied easements

Question 15

When does qualified title arise?

Answer 15

When a specified interest in the land is excepted from registration (i.e. there is a defect) and therefore not covered by the guarantee of title (rare in practice)

Question 16

What is possessory title based on, and does it affect rights which subsisted on the date of registration?

Answer 16

• Factual possession of the land (i.e. not documentary evidence), usually granted in cases of adverse possession or where title deeds are lost. It can be upgraded.* It has has the same effect as registration with absolute title except that it will not affect the enforceability of any right affecting the title which subsisted on the date of first registration so claims may be brought by someone with a better title.

Question 17

Good leasehold title is essentially absolute title for a lease, save for what limitation?

Answer 17

The guarantee of the register does not extend to the freehold estate or other superior leases, therefore the leaseholder is subject to any rights or obligations constained in them. This class is awarded when the freehold title has not been produced to HMLR

Question 18

What is absolute leasehold title?

Answer 18

Only awarded where HMLR has inspected all superior leasehold titles and the leasehold title.

Question 19

How can good leasehold and possessory title be upgraded, and what are they upgraded to?

Answer 19

• Good leasehold becomes absolute leasehold if freehold title is produced.* Possessory becomes absolute freehold if possessory title is not challenged for 12 years since it was granted.This is known as the ‘curative’ effect of registration

Question 20

Other than freehold and leasehold estates in land, what three estates can be registered, and get their own title number and register (i.e. be ‘substantively registered’)?

Answer 20

1. Rentcharges2. Franchises3. Profits a prendre in gross

Question 21

How can an owner of an interest in unregistered land ensure that they are notified of an application for registration is made regarding their land?

Answer 21

• Register a caution against first registration, and (if approved by HMLR) the caution gets it own title number, individual caution register and caution plan. This helps them ensure their interest is protected post-registration* A caution against first registration must be made with reasonable cause. A duty of care is owed to any person who suffers damage if a caution is entered without reasonable cause. * Note, the owner of the estate can apply to the Registrar to have the caution cancelled. The Registrar will notify the cautioner that it will be cancelled unless an objection is made within the prescribed period.

Question 22

If a caution is lodged against unregistered land that is subject to first registration, what happens?

Answer 22

The cautioner will be informed of the fact and will be given a specified period either to object to the application for registration or give notice that they do not intend to object.

Question 23

What are pre-registration deeds?

Answer 23

Title deeds and documents that cease to have legal effect once title has been registered.

Question 24

What does ‘perfecting a disposition’ by registration mean?

Answer 24

After first registration, all future dealings with the and are governed by the registered system, and dispositions must be registered i.e. ‘perfected’ each time they occur.

Question 25

What are four types of disposition which do not operate until registered?

Answer 25

1. Transfer of freehold estate (for value, by court order, by gift, or by PRs)2. Grant of legal lease with more than seven years3. Express grant or reservation of legal easement, legal profit, or legal rentcharge4. A first legal mortgageNote: certain other leases also need to be registered in order to operate

Question 26

In the registered system, when does title that is transferred pass?

Answer 26

When registration of the disposition is completed at HMLRNote: in the unregistered system, it passes on completion

Question 27

What are the 4 sections of the register of title?

Answer 27

1. Header Section2. Property register3. Proprietorship register4. Charges register

Question 28

What 4 pieces of information are contained in the header section of the register of title?

Answer 28

• The title number (i.e. unique HMLR reference number for the property and must be quoted in the contract and transfer when the property is being sold)* The edition date, which is the date when the register of title was last updated by HMLR* The date and time of the official copy, which is the time when the copy was produced (this should be quoted as the ‘search from’ date when applying for an official search against the title) and * The Land Registry office which deals with that title.

Question 29

What 3 things appear on the Property register?

Answer 29

• Postal address and title plan* Legal estate held (if leasehold, also includes brief details of the lease)* Any right benefitting the property, such as a right of way of neighbouring land

Question 30

What three things appear on the Proprietorship register?

Answer 30

1. Class of title2. Name(s) of current estate holder(s)3. Any restrictions affecting the property

Question 31

What appears on the Charges register?

Answer 31

Details of any encumbrances on the land e.g. restrictive covenants or mortgages appear as a notice.If there are none (rare), thre will be no charges register.

Question 32

How are third party interests in registered land protected?

Answer 32

On the register (protects the priority of the interest against that of a subsequent registrable disposition for value):* Charges* Notices* Restrictions Not on the register:* Overriding interests

Question 33

What are the two main examples of third party interests that appear as charges on the register?

Answer 33

• Legal mortgage of registered land (details of the lender and the date of the charge are included)* Legal easements (i.e. burden on servient tenement)

Question 34

What is required of an expressly created legal easement?

Answer 34

They must be completed by registration

Question 35

What are the two ways a legal easement can be completed by registration?

Answer 35

1. On the charges register of the servient tenement (burdened land) as a notice, or2. On the property register of the dominant tenement (benefitting land) as a notice

Question 36

A and B are neighbours. A agrees to grant B an easement to walk along a path over Andrew’s land to reach a public footpath. B registers a notice at HMLR. Where will this notice be?

Answer 36

The notice does not create a new record with its own unique title number. Rather, the notice appears on the charges register of A’s title. Thus, anyone viewing A’s register of title will have notice of the easement. The benefit of the right of way will appear on the property register of B’s title.

Question 37

How are other third party interests (i.e. not legal mortgages/legal easements) protected, and what register do they appear on?

Answer 37

1. Notice (agreed or unilateral): on the charges register of the affected property2. Restriction: on the proprietorship register

Question 38

What is a notice, and what are the two types?

Answer 38

• An entry on the charges register in respect of a burden of an interest affect a registered estate or charge.* Agreed notice and unilateral noticeNote, an application for a notice must be made with reasonable cause. A person who registers a notice without reasonable cause can be held liable to any person who suffers damages as a result.

Question 39

Does agreed notice require consent of the registered proprietor?

Answer 39

Despite the name, no (note, it is usually obtained). If consent is not available HMLR will require strict evidence of the interest.

Question 40

What is a form AN1?

Answer 40

An application for an agreed notice on the register e.g. to protect an estate contract

Question 41

What is a form UN1?

Answer 41

An application for a unilateral notice on the register (one without consent of the registered propriator).The application must state on what grounds the notice is being made.

Question 42

How can a proprietor have a notice cancelled?

Answer 42

They apply to HMLR, who will notify the benefitting party to respond within a prescribed period, and if they don’t the notice is cancelled

Question 43

What is a restriction?

Answer 43

An entry on the proprietorship register used to prevent any dealing the with the land otherwise than in accordance with the terms of the restriction* They are in standard form generally and any variation to the approved wording must be submitted to HMLR for approval with an additional fee* Property owned as tenants in common with have a restriction

Question 44

What is an overriding interest in the registered system?

Answer 44

Interest which is binding on both the proprietor and a person who acquires an interest despite the fact that the interest does not appear on the affected register of title

Question 45

What are the three overriding interests in the registered system?

Answer 45

1. Legal leases for seven years or less2. Legal easement or profits a prendre (if meeting relevant requirements)3. Interest (i.e. property right) of person in actual occupation

Question 46

What is an interest which overrides in the unregistered system that is not an overriding interest in the registered system?

Answer 46

Local land charge

Question 47

What type of easement cannot be an overriding interest?

Answer 47

An expressly created easement (i.e. created by deed) cannot be overriding

Question 48

What are the requirements for an easement to be an overriding interest?

Answer 48

1. It must be a legal easement by implied grant or reservation or by prescription (cannot be by deed)2. It must either:* be registered under the Commons Act 2006 or * be known to the buyer or * obvious on reasonably careful inspection of the land, or * it has been exercised within one year of the date of the disposition.

Question 49

A has exercised a right of way over B’s land for over 20 years to get to the public highway. The route of A’s access has created a visible pathway over B’s land. B is now selling his land to C. C hires the services of a solicitor. Neither C nor the solicitor goes to look at B’s land before the purchase completes. Is A’s right likely to be an overriding interest?

Answer 49

A’s right of way is likely to be an overriding interest and will bind C because:* he has acquired the right of way by prescription (that is, long use) so he has a legal right which has not arisen by express creation and * the right of way was obvious on a reasonably careful inspection of B’s land over which it is exercised.

Question 50

What two things defeat an overriding interest of a person in actual occupation in the registered system?

Answer 50

1. Buyer making an inquiry about an occupier and the extent of the occupation was not disclosed or2. Occupation not obvious on a reasonably careful inspection at the time of disposition and the occupation was not in the actual knowledge of the buyer

Question 51

What must a person claiming the overriding interest have in addition to mere occupation?

Answer 51

A property right in the land, e.g. beneficial interest, tenancy A licence is not sufficient for the overriding interest to exist

Question 52

What five factors will the court take into account in determining if there is actual occupation for the purposes of an overriding interest?

Answer 52

1. Degree and continuity of permanence2. Intentions and wishes of the person in occupation3. Length of and reasons for any absences4. Nature of the property5. Personal circumstances of the person in occupation

Question 53

Whilst temporary absences will not preclude, to claim the overriding interest, at what time specifically must the occupation exist?

Answer 53

At the time the property is transferred to the buyer

Question 54

What will make an interest cease to be overriding?

Answer 54

If upon disclosure to HMLR during applying for registration or a registrable disposition, the interest is capable of registration, it will cease to be overriding and will be protected by an entry on the register of title

Question 55

The right of occupation of whom specifically is not capable of being an overriding interest, and how is that protected instead?

Answer 55

The right of occupation of a non-owning spouse/civil partner. The right is instead registered as a notice on the registered proprietor’s register of title.| Family Law Act 1996

Question 56

Protection of third-party interests in registered land

Answer 56

Legal interests * Mortgage/Easement = Registration on charges register of burdened title* Lease of 3-7 years = Registration of a notice on the affected titleEquitable interests* Estate contract, Restrictive Covenants = Registration of a notice on the affected title* Interest of a beneficiary under a trust = Registration of a restriction on the affected title (Note: Can be overreached)Overriding interests* Legal leases of 7 years or less, Easements acquired by prescription/implied, Interest of a beneficiary under a trust) = Capable of binding a buyer even though they don’t appear on the register of title

Question 57

To whom do the most recent set of rules regarding adverse possession in registered land apply?

Answer 57

Any person in adverse occupation of land who had not completed the 12-year limitation period before 13 October 2003. The new rules are designed to give the registered proprietor more protection from losing his title to a claim for adverse possession.

Question 58

In the registered system, how is the process of adverse possession different?

Answer 58

1. Period is 10 years instead of 122. Squatter does not acquire any rights automatically3. They merely receive a right to apply for registration of title at the end of the period4. Landowner/others with an interest in the land will be given opportunity to object, and if they do the application will usually fail4. Other elements are the same: actual, physical, exclusive possession, without landowner permission

Question 59

In what three situations may an application for adverse possession still be granted even though the landowner objects?

Answer 59

1. Unconscionable for the proprietor/landowner to seek to displace the applicant (i.e. on the facts, applicant should be regarded as the proprietor) e.g. landowner knew of squatter and didn’t object when they built a house2. Applicant is for some other reason entitled to be proprietor3. Reasonable mistake as to boundaries

Question 60

If an application for adverse possession is successful, what will the applicant get?

Answer 60

They will be registered as proprietor of the estate of which they have been in adverse possession. So, they could end up becoming the freehold owner with title absolute.