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Law First Year > Property Law Second Term - OVERREACHING > Flashcards

Property Law Second Term - OVERREACHING Flashcards

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1
Q

Coleman v Bryant

A

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

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1
Q

Abbey National v Cann

A

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

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1
Q

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

A

Inherent in trustees’ powers of disposition

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1
Q

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

A

S.16 TOLATA

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2
Q

Who called CLBS v Flegg a ‘hard case’?

A

Dixon

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2
Q

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

A

Attach to the equity of redemption

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3
Q

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

A

11

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5
Q

How are equitable interests binding in unregistered land

A

Doctrine of notice

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6
Q

What was the alternative reform suggestion of Harpum to overreaching?

A

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

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7
Q

Bleak House

A

CLBS v Flegg

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8
Q

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

A

S.2(4) LCA 1972

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8
Q

Birmingham Midshires v Sabherwal

A

Legal title in sons - overreached PE

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8
Q

McFarlane on Sabherwal?

A

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

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9
Q

What are the two positives of Sood?

A

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

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9
Q

Law Com Report No.188

A

Defunct suggestions for reform of overreaching

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10
Q

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

A

Dixon

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11
Q

CLBS v Flegg

A

Bleak House - remortgage

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13
Q

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

A

S.2 LPA

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14
Q

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

A

Abbey National v Cann

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15
Q

When does overreaching occur?

A

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

16
Q

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

A

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

18
Q

HSBC Bank v Dyche

A

No overreaching if used to perpetrate a fraud

19
Q

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

A

Harpum

21
Q

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

A

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

22
Q

What is the negative of Sood?

A

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

23
Q

What did Ferris and Battersby argue?

A

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

24
Q

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

A

S.2 and s.27 LPA

25
Q

What happened in CLBS v Flegg?

A

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

25
Q

What does s.14 TOLATA denote?

A

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

27
Q

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

A

Law Com Report No.188

28
Q

Kingsnorth Trust v Tizard

A

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

30
Q

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

A

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

31
Q

State Bank of India v Sood

A

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

32
Q

No overreaching if used to perpetrate a fraud

A

HSBC Bank v Dyche

33
Q

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

A

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

34
Q

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?

A

Ferris and Battersby

35
Q

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

A

Sabherwal

37
Q

Who agreed with McFarlane on the doctrinal reason for overreaching?

A

Harpum

38
Q

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

A

S.23 and s.26

41
Q

What did Dixon say of CLBS v Flegg?

A

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

41
Q

What did Harpum suggest about Sabherwal?

A

Not limited to situations where trusts and estoppel coincide

42
Q

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

A

Kingsnorth Trust v Tizard

43
Q

What did Gravells suggest about HSBC v Dyche?

A

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

44
Q

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

A

S.27 only applies when there is money

45
Q

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

A

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

46
Q

Skipton BS v Clayton

A

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

47
Q

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

A

Skipton BS v Clayton

48
Q

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

A

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

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