Property Law Second Term - OVERREACHING Flashcards
Coleman v Bryant
Court unlikely to allow Restriction in register against sale by one legal owner
Abbey National v Cann
Can infer consent when equitable owner knew mortgage was necessary to purchase
What argument does McFarlane prefer for how beneficial interests can be overreached (doctrinally)?
Inherent in trustees’ powers of disposition
Where can a purchaser look for protection in overreaching under unregistered land?
S.16 TOLATA
Who called CLBS v Flegg a ‘hard case’?
Dixon
If the overreaching action is a mortgage, what happens to the beneficial interests?
Attach to the equity of redemption
What section of TOLATA requires trustees to consult equitable owners if practicable?
11
How are equitable interests binding in unregistered land
Doctrine of notice
What was the alternative reform suggestion of Harpum to overreaching?
Restrict powers of trustees to mortgages to secure purchase, improvement or repair of the land
Bleak House
CLBS v Flegg
What section of what statute states that equitable interests in unregistered land cannot be land charges?
S.2(4) LCA 1972
Birmingham Midshires v Sabherwal
Legal title in sons - overreached PE
McFarlane on Sabherwal?
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
What are the two positives of Sood?
Ensures free alienability of co-owned land and lenders have agreed to such mortgages
Law Com Report No.188
Defunct suggestions for reform of overreaching
Who suggested an equitable owner could enter a Restriction under court order s.14 TOLATA to prevent sale by one legal owner?
Dixon
CLBS v Flegg
Bleak House - remortgage
What section of what statute gives rights capable of being overreached?
S.2 LPA
Can infer consent when equitable owner knew mortgage was necessary to purchase
Abbey National v Cann
When does overreaching occur?
Within powers of trustees (s.6 TOLATA), right capable of being overreached (s.2 LPA) and statutory conditions fulfilled (s.2 LPA)
What does McFarlane state about CLBS v Flegg after s.4/5 TOLATA?
Flegg now have a beneficial interest in land, in which they have a right of occupation.
HSBC Bank v Dyche
No overreaching if used to perpetrate a fraud
Who argued, prescient to Sood, that capital money need not be paid for overreaching to occur?
Harpum
What three other arguments did McFarlane reject for doctrinal reasoning for overreaching and powers of trustees to do so/
S.27(1) LPA, conversion and inherent for unregistered land
What is the negative of Sood?
Overreaching usually justified as interest of beneficiary is transferred to capital sum
What did Ferris and Battersby argue?
S.6(1) TOLATA general power is further limited, reversing Flegg
Where can a purchaser look for protection in overreaching regardless of land type?
S.2 and s.27 LPA
What happened in CLBS v Flegg?
Remortgage of the house meant the interests of the beneficiaries were overreached
What does s.14 TOLATA denote?
Purchaser/mortgagee without priority can apply for sale to realise security against wishes of beneficiaries whose interests they have not overreached
What defunct Law Com Report suggested three alternatives to reform overreaching?
Law Com Report No.188
Kingsnorth Trust v Tizard
If they live in property, purchaser/mortgagee deemed to have constructive notice of interest and thus bound
What if the legal owners abscond with the money from the conveyance?
Normal remedies for breach of trust - personal action or trace claim to assets obtained by trust money
State Bank of India v Sood
If money is not payable as part of mortgage for s.2 then need not be paid at all
No overreaching if used to perpetrate a fraud
HSBC Bank v Dyche
What do trustees HAVE to do under s.6 TOLATA?
MUST consult the trustees, and must use powers consistent with the trust
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?
Ferris and Battersby
In what case did the CoA think 1997 Act did not affect overreaching?
Sabherwal
Who agreed with McFarlane on the doctrinal reason for overreaching?
Harpum
Where can a purchaser look for protection in overreaching for registered land?
S.23 and s.26
What did Dixon say of CLBS v Flegg?
‘Hard case’ and law should not change to meet its exceptional nature
What did Harpum suggest about Sabherwal?
Not limited to situations where trusts and estoppel coincide
What case shows that doctrine of notice for unregistered land = living in property?
Kingsnorth Trust v Tizard
What did Gravells suggest about HSBC v Dyche?
Unknowingly reversed Flegg under TOLATA by saying breach of trust (i.e. transaction unauthorised) means it doesn’t overreach
Why does McFarlane argue cases like Sood do not need two trustees?
S.27 only applies when there is money
What were the three suggestions of Law Com Report no 188?
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
Skipton BS v Clayton
Knowledge of sale/mortgage is insufficient for consent to priority of mortgage
Knowledge of sale/mortgage is insufficient for consent to priority of mortgage
Skipton BS v Clayton
Why did the court decide PE could be overreached in Sabherwal?
Because would create a lacuna in overreaching to enable C to claim PE instead of CT and avoid it
