Land - Title / Doctrine of Notice LGS 18 Flashcards
Docrtine of notice applies to
Interests of a beneficiary in a trust of land, with unregistered title.
Only relevant to trsuts and unregistered title.
Legal rights in or over land historically defined as in rem, enforceable against the land such as leased. The LCA and LRA provides exceptions that some rights will not be enforceable.
Doctrine of Notice:
equitable interests regarded as enforceable against anyone except a bona fide purchaser for value of the legal estate without notice of the equitable interest.
- THE DOCTRINE OF NOTICE
Bona fide
Value
Legal estate
Good Faith
Means money or money’s worth or future marriage.
Means a fee simple absolute in posession or term of years absolute and rights over anothers land.
Notice (3 Kinds)
Actual
Constructive
Imputed
Purchaser knows of interest, but proof is required (Lloyd v Banks)
Purchaser is deemed to have notice of all matters which he would have discovered if made reasonable and prudent equiries. S.199 LPA 1925.
Comes through Solicitor or Agent if they aquire actual or imputed knowledge on clients behalf.
Actual Notice
Lloyd v Banks
That the mind of the purchaser has in some way been brought to an intelligent apprehension of the nature of the equitable interest so that a reasonable man regulate his conduct by it.
Constructive Notice
S199 (1) LPA 1925:
Buyer will not be affected by notice unless
- it is in his knowledge or would be if reasonable enquiries and inspections had been made as ought reasonably to have been made. OR
- it would have come to knowedge if enquiry had been made, it has come to the knowledge of his counsel, agent or solicitor or if such information would have come to the their knowledge had they made reasonable enquiry.
Hunt v Luck
Purchaser should investigate not only title deeds but also inspect land.
If sellers dont disclose a beneficiary or potential interest then you are not fixed with notice at that point, though it would be unwise to pursue if their is evidence.
Imputed Notice
Kingsnorth Finance Co Ltd vTizard [1986]
T mortgaged martimonial home which Wife had interest in as a result of her contribution to price.
Mortgagee’s Surveyor did not see wife and did not make enquiries as to whether the mortgagor had a wife, only looked for signs of other adults there.
Surveyor was held to have failed to make sufficient enquiries about marital status and the finance company were fixed with imputed notice
Imputed notice cont.
Gordon v Holland
person bound by the interest who sells to a purchaser without notice and later aquires property again cannot shelter behind the purchasers immunity.
A purchaser of an equitable interest always takes subject to prior equutable interests.
Overreaching
overreaching was introduced and is currently contained in ss. 2(1) and 27 LPA 1925.
When capital money is paid to trustees of land the interests of the beneficiaries are transferred from the land to the capital.
The purchaser or mortgage lender takes free from interests of the beneficiaries, who’s interests attach to the capital rather than land.
Overreaching
purchaser need not be concerned with the fact that the land has been trust property, the provisions of s.27(2) LPA 1925 must be complied with. on transfer of property by trustees, proceeds of sale must be transferred to no fewer than two trustees or a trust corporation.
A purchasers knowledge or notice will then be irrelevant.
When can over reaching be used ?
to take free / overreach equitable interests under an implied or express trust. (see earlier lectures for implied trust? )
no method exists to overreach equitable interests in land such as an equable easement lease or restrictive covenant.
Summary, useful intro sentances:
• The purchaser of land will wish to discover whether any third party rights exist that affect the land
• The purchaser will also wish to know whether he/she is bound by those rights
o Equitable interests bind everyone apart from the bona fide purchaser for value of the legal estate without notice (the equitable doctrine of notice).
• In modern property law, the equitable doctrine of notice is usually only encountered in the context of a trust of land, where title to that land is unregistered
