Land IIB Enforceability of Third Party's Interests (Reg and UnReg System) Flashcards
How do a party enforce their right to a subsequent buyer in an unregistered system?
The consequence of registration
Most equitable rights and interests must be protected by registration at the Land charges Department.
If the right Is registrable, the charge must be made against the owner’s name by the date of completion of the sale
if the charge is registered, it binds the buyer
if the charge is unregistered - buyers take it free of interest unless it is given as a gift
Explain a C(i) Charge
C(i) charge is a puisne mortgage
A puisne mortgage which is a mortgage not protected by the deposit with the lender of the title deeds. such as a second legal charge
Explain a C(iv) charge
C(iv) charge is an estate contract. Estate contract can be a contract to purchase, an option to purchase and right of pre-emption(first right of refusal).
Explain a D(ii) charge
Restrictive covenant: a contract concerning land that imposes a duty on the owner not to do sth
it will bind without registration unless it is contained in a lease and is created in 1926
Explain a D(iii) charge
Equitable easement: a form easement that does not satisfy the term being year absolute or forever, of that is not expressed in the form of deed.
Explain a class F charge
S,30 Family Law Act 1996
the spouse of a living owner has a statutory right of occupation of the matrimonial home.
What are the rights that are unregistrable in the unregistered system?
and the consequence for enforcement of unregistered equitable or legal interests
Most legal interests
Equitable interests arising under a trust
Pre-1926 equitable interests
Consequences: Legal interests bind the whole world Equitable: trust interests can be overreached or if the buyer is an equity's darling
non-trusts interests bind buyer unless he is equity’s darling.
What are registrable in a registered system?
DOIT
Registrable Disposition
Legal easements, legal charges (mortgages) and legal lease over seven years
Overriding interests
Lease less than 7 years
Lease less than 21 years if created before 13 Oct 2003
Legal easement
Trust interests
Express, resulting or constructive trusts
Interests affecting a registered estate (IARE)
Estate contract, equitable easements, restrictive covenants and FLA rights
How does a legal easement qualify to be overriding under schedule 3 para 3 of LRA 2002?
The purchaser must have known of the easement before the purchase of the property or
The easement would have been obvious on a reasonably careful inspection of land or
The easement has been used by the person entitled to it in the year preceding the disposition of the land.
How may actual occupation be granted an overriding status under schedule 3 para 2 of LRA 2002
It must be either
obvious on a reasonably careful inspection of land, or if the buyer knew of it; or
person disclosed the right if enquiries were made of it when he could reasonably be expected to do so.
FLA and easement right is not protected by actual occupation
Case law implications on
the definition of actual occupation
(obvious….reasonably….inspection….physical)
and what may retain or disqualify actual occupation
(5 can be)
SCARF
rule on absence (1)
degree of occupation (1)
rule on children (1)
Actual occupation to be obvious on a reasonably careful inspection; there must be visible signs of occupation which have to be obvious on inspection. There must be a physical presence on the land (Boland).
Actual occupation can be:
Can be regular visits to supervise renovation (Rosset)
Can be a car parked regularly in the garage (Kling)
An agent can have an actual occupation for you but not a relative (Strand Securities)
Can be if your possessions are still in the property and you have aspirations (REASON) to return (Bustard) not if you have no aspirations to return (Foy)
Fencing may suffice on derelict land (Malory Enterprises)
A temporary absence does not preclude AO (Chhokar)
A minor cannot be in AO (Robinson)
Preparatory steps leading to AO are not. some degree of permanence and continuity is needed (Strand Securities)
How to enforce a registrable disposition and IARE on a registered land (time)
They must be registered at Land Registry by date of registration of buyer as new owner or they won’t bind the buyers
How to enforce an overriding interest
it need not be registered but the right must exist by the date of registration of the buyer as the new owner
For AO, the date of registration of the buyer as the new owner is the relevant date for assessing the actual occupation
How to enforce a trust interest
The beneficiaries can register a restriction against the land, but this does not prevent the interest from being overreached.
if the buyer fails to overreached, the registration of new owner will be rejected.
With or without the entry of restriction, once the buyer pays money to all trustees being at least 2 in numbers, he takes the land free of trust interests
What is an equity’s darling
What is notice
a bona fide purchaser for value of a legal estate without notice.
A notice can be actual (plain meaning);
imputed (by a thrid party)
constructive:
would have notice if such inquiries/inspections had been made as ought reasonably to have been made or
presence would have been apparent from inspection (Kingsnorth Finance)
