Land Registration Flashcards
A temporary absence will not necessarily prevent a person from being in actual occupation
Chhokar v Chhokar
- Wife was in hospital giving birth when the house was sold.
It was held that a woman residing in a care home at the time that her property was sold was in actual possession
Link Lending v Bustard
- woman with severe mental health problems was in hospital for a long-term stay.
Having your belongings present in the property is not sufficient in itself to constitute actual occupation
Stockholm Finance v Gordon Holdings
- A princess living outside the UK and had not visited her london house for over a year.
The owner of a flat could not be in actual occupation through a relative, as they were occupying for their own purposes.
Strand Securities v Caswell.
- Man let his step-daughter live in his unoccupied property rent-free and tried to rely on her presence for actual occupation
(obiter) a live-in caretaker could be in actual occupation on behalf of his employee
Abbey National v Cann
- Mother lived in a house with her son who was the RP. He defaulted on the mortgage and the bank sought possession whereupon the mother claimed ‘Actual Possession’.
In order to have an overriding interest the person must be in actual occupation ‘at the time of the transfer of the deed being executed’
Sch. 3 LRA 2002
Abbey National v Cann
Land can also include fixtures (stones brought onto the land to make a wall)
Elitestone v Morris
Occupiers who are not estate owners
- Adverse Possessors
- Co-Ownership
- licenses
Security Interests
Mortgages
Rights over neighbouring land
- Easements + profits
- Restrictive covenants
Commercial rights
- options to purchase
- right of first refusal
Evictions of adverse possession are compatible with human rights
Pye v UK
I order to establish adverse possession (Schedule 6), the claimant must prove:
- factual possession
- Intention to possess for one’ own benefit
Adversely possessing a piece of deserted shrub land
Redhouse Farms v Catchpile
Squatter agreed that he was not the legal owner and so did not have an intention to possess
Lambeth v Blackburn
LRA 2002 (squatters)
- a squatter can apply after 10 years of actual occupation.
- No limitation on when the registered proprietor can being a claim
- After being notified of the claim, the registered proprietor has 2 years to evict the squatter.
Title is guaranteed by registration on the land registry
S. 58 LRA 2002
Title is still guaranteed if you become registered proprietors by mistake
Walker v Burton
The ‘principle of conclusiveness’ of the land registry
the registered proprietors displayed on the land registry are conclusive.
The land registry was conclusive, even though a mortgage was registered through forgery. They received compensation from the registry.
Swift 1st v Chief Land Registry
The register can be changed in certain circumstance, but no if it has been sold (in the case of adverse possession)
Baxter v Manion
Just because there has been a mistake does not mean that the transaction will necessarily be undone or the register will be changed.
Patton v Dodd
Where there is a rectification, someone gets the land; someone gets the money
Indemnity Schedule 8
Once a person is registered as the proprietor of an estate they have all the powers of an absolute owner
s. 23 LRA
Property interests which are not registered estates or registered charges may be protected by an entry on the register
s. 28 + 29 LRA
The Basic Priority Rule (s. 28)
If the new owner of an existing land is not a purchaser then they take the land subject to ALL pre-existing property rights (s. 28)
The Special Priority Rule (s. 29)
On a transfer for value of existing land, the purchaser is bound by certain interests (s. 29)
s. 29 binding interests
- any interest affecting the title
- interests on the register
- unregistered interests which override (sch. 3 LRA)
The purchaser has a duty to disclose any rights to the register that they know about
s. 71 - can do so by a notice or an agreed notice
Certain interests cannot be protected by a notice s. 33
- Leases of less than a year
- leasehold covenants
- an equitable share of co-ownership.
Land becomes registered upon
- compulsory first registration
- voluntary first registration
- failure to register.
Compulsory first registration occurs on:
- s. 4 LRA 2002
- Transfer of an unregistered freehold estate
- transfer of an existing unregistered leasehold estate of over 7 year left to run
- a grant of a new lease of more than 7 years
- the first legal mortgage of unregistered land
voluntary registration
you cannot register voluntarily what is incapable of being registered
Failure to register
- the pre-existing owner continues to hold the estate on a bare trust s. 7 LRA
- the new owner will find life difficult (Sainsbury’s v Olympia)
S. 1 LPA 1925: Items capable of being legal
- freehold; leasehold; easements; mortgages & rent charges
- all other can only be created equitably.
Creation of legal rights
- creation by deed or registration
- if those potentially legal rights are not created properly, they can only be equitable.
Creation of equitable rights
by deed or written oral agreements
Overreaching under the LPA 1925
rights that might otherwise bind a purchaser are ‘swept off the land’
- holders of those right receive a proportion of the purchase price paid.
Conditions for overreaching
- the right must be capable of being overreached
- Actual occupation (AIB v Turner)
- the proper conveyancing process must be observed
- there must be a convergence of a legal title.
The right must be capable of being overreached
interests, such as, easements, leases and covenants are not capable of being overreached
Actual occupation for overreaching
- the occupation has to be actual (AIB v Turner)
- The occupation does not need physical presence (Link Lending v Bustard)
the proper conveyancing process must be observed for overreaching to occur
- land can only be sold by at least two owners
- Williams and Glyn Bank v Boland: 1 owner, no overreaching
- CoL BS v Flegg: 2 owners, overreaching possible
There must be a conveyance of a legal estate for overreaching to occur
Freehold, lease, mortgage etc
Effect of overreaching
- the interest is ‘swept off the land’ and does not bind the purchaser even if the interest is capable of being an overriding interest (Flegg)
- this cannot work to perpetrate a fraud (HSBC v Dyche)
Overriding interest
Interests that bind a transferee of land despite not being registered on the register.
Overriding interest under LRA 2000
- transfer not for value: all property rights are binding, (don’t need to discuss overriding interest s. 28)
- transfer for value: overriding interests may apply
Overriding interest of a title that is already registered Sch. 3
- leases of 7 yrs or less (including implied periodic leases)
- implied legal easements
- rights of the person in actual occupation
the overriding rights of a person in actual occupation
- if you have a right and in actual occupation then you have an overriding interest (William’s & Glynn’s Bank v Boland)
- this is most often an equitable right, such as a share of equitable ownership
most overriding rights have to be reasonably discoverable (an objective test)
Wishart v kaymu
Overriding rights don’t have to be reasonably discoverable if the seller has lied to the purchaser upon enquiries
Bagum v Issa
The purchaser has a duty to disclose any rights to the register that the purchaser knows about
s. 71 LRA 2002
formalities for the creation of a leagl ease greater than 7 years
- by deed (s. 52 LPA 1925)
- By registration (s. 27 LRA 2002)
Formalities for creation of a legal lease equal or few than 7 years but greater than 3 years.
- by deed, no registration needed (s. 52 LPA 1925)
For legal leases of fewer than 3 years, two types of lease can exist
- fixed term lease
- periodic term lease.
Formalities for creation of a fixed term lease of fewer than 3 years
by deed (s. 52 LPA 1925)
formalities for creation of a periodic term lease of fewer than 3 years
by deed (s. 52 LPA) - can be by oral agreement (Fitzkristan LLP v Panayi)
A periodic term lease can only be created orally if the tenant
- is in possession of the property
- pays the best rent (the market rate Fitzkriston)
- pays without a fine (without paying a sum up from to the landlord)
the situations in which an equitable lease may be created
- out of an agreement to create a lease
- from a failed lease agreement
- a lease granted over an equitable estate.
the formalities for the creation of an equitable lease s. 2 LP(MP)A
- in writing
- contain all the agreed terms
- signed by both parties
- be capable of specific performance (Walsh v Lansdale)
The formalities of the creation of an express legal easement
- by deed (s. 52 LPA)
- for a duration equivalent to a legal estate (s. 1 LPA)
- registered (s. 27 LRA)
the formalities for the creation of an implied legal easement
- no formalities needed (Manjong v Drammeh)
- the easement must be:
impliedly acquired for the duration of a legal estate
implied into a deed
the formalities for the creation of an express equitable easement
- in writing, signed by the covenentor (s. 53 LPA)
- capable of specific performance (walsh v Lonsdale)
- Man took a 7 yr lease of a mill. Was not granted by deed so not effective but both parties carried out their duties regarless.
Binding capabilities of a legal lease greater than 7 years
registration is required (s. 27 LRA)
Binding capabilities of a legal lease equal or fewer than 7 years
this is an overriding interest and the purchaser will be bound (sch. 3 LRA)
Equitable leases are required to bind all purchasers if
there is a notice on the charges register (s. 32 LRA)
If there is no notice on the charges register, a purchaser will be bound by an equitable lease if
the property is transferred without value (a gift) s. 28
- not bound if transferred for value s. 29 (De Lusignon v Johnson)
A purchaser will always be bound by an equitable lease if
it constitutes an overriding interest with the lessee in actual occupation
unless
- there is a lack of disclosure by the seller
- the lease was not obvious on a reasonable inspection
the binding capabilities of express legal easements
must be registered to be binding on a puchaser (s. 27 LRA 2002)
the binding capabilities of an implied legal easement
-these are overriding interest without registration requirements
they will bind if
- the purchaser has actual knowledge of them
- the easement is obvious upon a reasonable inspection
the easement was exercised in the year prior to the sale of the land
binding capabilities of Express Equitable Easements
- if there is a notice of the charges register, this will bind all purchasers
- if there is no notice, it will not bind if the land has transferred for value (s. 29)
- a purchaser will be bound if the EEE is an overriding interest, but not if this is not obvious or has not been disclosed to the purchaser.
A fraudulent RP can admit they were wrong
Patel v Freddy
The register can be changed, if needed, to alter priorities as well as legal title
Gould v Harp
Easements that merely allow access do not count as actual occupation
Chaudhary v Yavuz - staircase
Holaw v Stockton estates - right of way
Overreaching cannot work to perpetrate a fraud
HSBC v Dyche
Binding capabilities of covenants
- A notice on the charges register is required to bind all purchasers (s. 32).
- Without a notice it will not buy for a s.29 transfer (De Lusignan)
Overriding interest? (Sch. 3) - if the convanantee has an interest in the land
- is in actual occupation
or - it was not disclosed by the covenantee
- it was not reasonably discoverable
Binding Capabilities of Estate Contracts
- options to purchase
- right of first refusal
- A notice on the charges register is required to bind all purchasers (s. 32).
- Without a notice it will not buy for a s.29 transfer (De Lusignan)
Overriding interest? (Sch. 3) - if the beneficiary has an interest in the land
- is in actual occupation
or - it was not disclosed by the beneficiary
- it was not reasonably discoverable
