Property Law Second Term - OVERREACHING

Question 1

Coleman v Bryant

Answer 1

Court unlikely to allow Restriction in register against sale by one legal owner

Question 1

Abbey National v Cann

Answer 1

Can infer consent when equitable owner knew mortgage was necessary to purchase

Question 1

What argument does McFarlane prefer for how beneficial interests can be overreached (doctrinally)?

Answer 1

Inherent in trustees’ powers of disposition

Question 1

Where can a purchaser look for protection in overreaching under unregistered land?

Answer 1

S.16 TOLATA

Question 2

Who called CLBS v Flegg a ‘hard case’?

Answer 2

Dixon

Question 2

If the overreaching action is a mortgage, what happens to the beneficial interests?

Answer 2

Attach to the equity of redemption

Question 3

What section of TOLATA requires trustees to consult equitable owners if practicable?

Answer 3

11

Question 5

How are equitable interests binding in unregistered land

Answer 5

Doctrine of notice

Question 6

What was the alternative reform suggestion of Harpum to overreaching?

Answer 6

Restrict powers of trustees to mortgages to secure purchase, improvement or repair of the land

Question 7

Bleak House

Answer 7

CLBS v Flegg

Question 8

What section of what statute states that equitable interests in unregistered land cannot be land charges?

Answer 8

S.2(4) LCA 1972

Question 8

Birmingham Midshires v Sabherwal

Answer 8

Legal title in sons - overreached PE

Question 8

McFarlane on Sabherwal?

Answer 8

Difficulty in extending overreaching to non-trust situations as it bases trustees’ powers of disposition - no basis on which an equitable interest not under a trust can be overreached

Question 9

What are the two positives of Sood?

Answer 9

Ensures free alienability of co-owned land and lenders have agreed to such mortgages

Question 9

Law Com Report No.188

Answer 9

Defunct suggestions for reform of overreaching

Question 10

Who suggested an equitable owner could enter a Restriction under court order s.14 TOLATA to prevent sale by one legal owner?

Answer 10

Dixon

Question 11

CLBS v Flegg

Answer 11

Bleak House - remortgage

Question 13

What section of what statute gives rights capable of being overreached?

Answer 13

S.2 LPA

Question 14

Can infer consent when equitable owner knew mortgage was necessary to purchase

Answer 14

Abbey National v Cann

Question 15

When does overreaching occur?

Answer 15

Within powers of trustees (s.6 TOLATA), right capable of being overreached (s.2 LPA) and statutory conditions fulfilled (s.2 LPA)

Question 16

What does McFarlane state about CLBS v Flegg after s.4/5 TOLATA?

Answer 16

Flegg now have a beneficial interest in land, in which they have a right of occupation.

Question 18

HSBC Bank v Dyche

Answer 18

No overreaching if used to perpetrate a fraud

Question 19

Who argued, prescient to Sood, that capital money need not be paid for overreaching to occur?

Answer 19

Harpum

Question 21

What three other arguments did McFarlane reject for doctrinal reasoning for overreaching and powers of trustees to do so/

Answer 21

S.27(1) LPA, conversion and inherent for unregistered land

Question 22

What is the negative of Sood?

Answer 22

Overreaching usually justified as interest of beneficiary is transferred to capital sum

Question 23

What did Ferris and Battersby argue?

Answer 23

S.6(1) TOLATA general power is further limited, reversing Flegg

Question 24

Where can a purchaser look for protection in overreaching regardless of land type?

Answer 24

S.2 and s.27 LPA

Question 25

What happened in CLBS v Flegg?

Answer 25

Remortgage of the house meant the interests of the beneficiaries were overreached

Question 25

What does s.14 TOLATA denote?

Answer 25

Purchaser/mortgagee without priority can apply for sale to realise security against wishes of beneficiaries whose interests they have not overreached

Question 27

What defunct Law Com Report suggested three alternatives to reform overreaching?

Answer 27

Law Com Report No.188

Question 28

Kingsnorth Trust v Tizard

Answer 28

If they live in property, purchaser/mortgagee deemed to have constructive notice of interest and thus bound

Question 30

What if the legal owners abscond with the money from the conveyance?

Answer 30

Normal remedies for breach of trust - personal action or trace claim to assets obtained by trust money

Question 31

State Bank of India v Sood

Answer 31

If money is not payable as part of mortgage for s.2 then need not be paid at all

Question 32

No overreaching if used to perpetrate a fraud

Answer 32

HSBC Bank v Dyche

Question 33

What do trustees HAVE to do under s.6 TOLATA?

Answer 33

MUST consult the trustees, and must use powers consistent with the trust

Question 34

Who argues that s.6 TOLATA is not further limited by other parts of the statute, and thus ultra vires transactions are more likely, reversing Flegg?

Answer 34

Ferris and Battersby

Question 35

In what case did the CoA think 1997 Act did not affect overreaching?

Answer 35

Sabherwal

Question 37

Who agreed with McFarlane on the doctrinal reason for overreaching?

Answer 37

Harpum

Question 38

Where can a purchaser look for protection in overreaching for registered land?

Answer 38

S.23 and s.26

Question 41

What did Dixon say of CLBS v Flegg?

Answer 41

'Hard case' and law should not change to meet its exceptional nature

Question 41

What did Harpum suggest about Sabherwal?

Answer 41

Not limited to situations where trusts and estoppel coincide

Question 42

What case shows that doctrine of notice for unregistered land = living in property?

Answer 42

Kingsnorth Trust v Tizard

Question 43

What did Gravells suggest about HSBC v Dyche?

Answer 43

Unknowingly reversed Flegg under TOLATA by saying breach of trust (i.e. transaction unauthorised) means it doesn't overreach

Question 44

Why does McFarlane argue cases like Sood do not need two trustees?

Answer 44

S.27 only applies when there is money

Question 45

What were the three suggestions of Law Com Report no 188?

Answer 45

One trustee as a solicitor/licensed conveyor, no possible if equitable owner registers interest (need amendment of s.33 LRA) OR not possible without consent of all owners of full age

Question 46

Skipton BS v Clayton

Answer 46

Knowledge of sale/mortgage is insufficient for consent to priority of mortgage

Question 47

Knowledge of sale/mortgage is insufficient for consent to priority of mortgage

Answer 47

Skipton BS v Clayton

Question 48

Why did the court decide PE could be overreached in Sabherwal?

Answer 48

Because would create a lacuna in overreaching to enable C to claim PE instead of CT and avoid it