Overriding interests

Question 1

types of overriding interest

Answer 1

Para 1- a legal lease granted for 7 years of less (subject to exclusions)
Para 2 – an interest of a person in actual occupation of the land (subject to condions) – issues with this one
Para 3 – an implied legal easement (subject to condions)

Question 2

Schedule 3, para 1 -

Answer 2

A legal lease granted for 7 years or less- Has to be legal (aka done via a deed to be legal)- Excepon: a legal lease which doesn’t take e@ect in possession unl at least 3 months a>er grant (granted on a day but doesn’t commence unl 3 months a>er grant), then it needs to go on the register in order to be binding.

Question 3

Schedule 3, para 3 -

Answer 3

An implied legal easement (has to be legal), has to be created by implicaon – an easement done by a document will be registered under s.27Condion an implied legal easement must meet:An implied legal easement is binding on a purchaser for valuable consideraon only if, 1. The purchaser actually knows of it; or2. He easement would be obvious on a reasonably careful inspecon of the land; or3. It has been used within one year of the purchaser buying the land.

Don’t need to satisfy all of the above, just one of them for the easement to be an overriding interest (generally easy to satisfy as it is likely that one to apply), if it doesn’t satisfy one of these then it is not an overriding interest am dos not binding on the purchaser.Implied – basically a legal con – courts will look at the terms of the sale and say that an easement must have been in the intenon of the pares.

Question 4

schedule 3, para 2 -

Answer 4

schedule 3, para 3: an interest of a person in actual occupation of the land. An existing right and actual occupaon = overriding interestMust have an exisng right in the property, not just occupaon of the property (which could be a mere bare license)

What rights can qualify?
Many interests include: most legal leases; benecial interests under a trust; estate contracts.
However: 1. Home rights are excluded by statute from being an overriding interest – s.31 (10) FLA 1996 (family law act 1996 – as amended by the civil partnership act 2004)2. A benecial interest under a trust can’t bind a mortgagee who has lent money to help buy the property (acquision mortgage)3. A legal lease which doesn’t take e@ect in possession unl at least 3 months a>er grant and which has not fallen into possession at the me of disposion is excluded – sch 3 para 2(d)