Unregistered land Flashcards
Quick Q:
A solicitor is acting for the seller of a freehold unregistered property. The solicitor is preparing for deduction of title to the property to the buyer’s solicitor. They examine the deeds and documents relating to the property.
Which of the following is the best candidate for a good root of title when deducing title to the property?
A conveyance of the property, dated 13 April 1985.
The correct option is E. The conveyance would show the legal and equitable interests, is likely to contain a recognisable description and is unlikely to cast doubt on the title. Prior to the date of the conveyance in 1985, the purchaser’s solicitor will have investigated title for the previous 15 years giving assurance to the buyer.
Title will not have been investigated in relation to the gift or the assent and therefore the conveyance is to be preferred over the assent. Options A and D are, therefore, incorrect.
Neither the Land Charges certificate nor the planning permission deal with the legal or equitable title to the property and are, therefore, not good roots of title. Options B and C are, therefore, wrong.
Quick q:
A buyer purchases a freehold unregistered property (‘the Property’) from two civil partners (‘the Sellers’). The buyer intends to extend the Property by building an extension. Shortly after commencing the building work, the buyer is contacted by a neighbour who shows the buyer a deed executed by both the neighbour and the Sellers that contained a promise by the Sellers that they would not carry out any building works on the Property without the consent of the neighbour and his successors in title. The neighbour did not register their interest as a land charge. The buyer has consulted a solicitor to seek advice and has admitted that they did not carry out any searches or enquiries prior to their purchase of the Property.
Will the buyer be bound by the neighbour’s interest?
No, because the interest should have been registered as a Land Charge.
Option D is correct. In the unregistered system, if an interest is capable of registration as a land charge, then it must be so registered before completion in order to bind a buyer. The neighbour has a restrictive covenant which is registrable as a class D(ii) land charge. As the neighbour did not do so, the buyer is not bound by the interest even if they had of known about it.
Option A is wrong as restrictive covenants can only ever be an equitable interest (despite being created by a deed) and will never be a legal one.
Option B is wrong because although the buyer will not be bound, it is not for this reason. Equity’s Darling only applies to those equitable interests that are not capable of registration as land charges.
Option C is wrong because although the buyer will not be bound, it is not for this reason: overreaching only applies to trust interests.
Option E is wrong as this is one of the requirements of the doctrine of notice (Equity’s Darling) which will not apply to a restrictive covenant.
Quick Q:
A buyer recently completed the purchase of an unregistered freehold property (‘the Property’). Yesterday, the buyer moved into the Property and was confronted by the neighbouring landowner who claimed to have a right of way over the Property for 20 years. The neighbouring landowner produced a deed evidencing the right of way. The buyer checked the document and discovered that the signatures had not been witnessed.
Will the buyer be bound by the neighbouring landowner’s right of way?
No, because the right of way is equitable and the buyer will only be bound if a Land Charge has been registered.
The correct option is A.
An easement for a fixed duration (20 years) is capable of being legal. A deed is required to create a legal easement. The document does not comply with the formalities for creating a deed because the signatures have not been witnessed. The easement is, therefore, equitable and would need to be protected by registration of a Land Charge.
Option D correctly states the legal principle but does not relate to the facts. The answer is, therefore, wrong.
Option C is partially correct in that it identifies that the easement is equitable but wrong in stating that an equitable easement cannot bind the buyer.
Option E is wrong as a legal easement in unregistered land would bind the world. A Land Charge is only required to protect an equitable easement.
Option B correctly states the legal principle applying to equitable easements created prior to 1926 but the easement in question was created recently and, therefore, the answer is wrong.
Quick Q:
A solicitor is acting for a purchaser of land with unregistered title. The seller’s solicitors have produced a schedule of documents detailing the last four conveyances of the land as follows:
1985 conveyance (which refers back to item III.)
1985 mortgage
1975 conveyance which contains an easement burdening the land
1965 conveyance
Which of the following best describes which documents the buyer’s solicitors are entitled to request?
The 1985 conveyance as it is a good root of title and the 1975 conveyance as the buyer may be affected by the easement it contains.
Option C is correct. The 1985 conveyance is a good root of title. Generally, documents pre-dating the root can be ignored. However, where the root document refers back to a third party right created in an earlier conveyance, the buyer is entitled to call for that earlier conveyance. It is likely therefore that the buyer will want to call for (and be entitled to call for) production of the 1975 conveyance.
Option A is not the best answer, as whilst the 1985 conveyance does represent a good root of title, the buyer may be affected by pre-root third party rights and will want to review the 1975 conveyance.
Option B is not the best answer. The buyer’s solicitor will want to identify the good root of title. The root of title is not necessarily the most recent document(s) in the schedule provided by the seller, but one which satisfies the requirements of s 44 of the Law of Property Act 1925. Whilst the 1985 conveyance does represent a good root of title, the buyer may be affected by pre-root third party rights and will want to review the 1975 conveyance.
Option D is wrong as the seller only needs to produce title deeds proving ownership for the last 15 years and the 1965 conveyance does not contain any third party rights.
Option E is wrong as the land has not been registered with the Land Registry.
Quick Q:
A solicitor is acting for a buyer of a freehold property which has an unregistered title. The buyer’s solicitor has received copies of the deeds and documents relating to the property. Included within the title documents is an assent of the property dated 25th September 1979; a conveyance of the property dated 16th August 1991 and also a mortgage of the property dated 5th December 2005. The 1991 conveyance also contains a legal right for the neighbouring property to use a water pipe underneath the driveway of the property.
Which of the following best explains which document is the best candidate for a good root of title and how the easement binds the property?
The conveyance is the best candidate for a good root of title and the neighbour’s easement to use the water pipe will bind the property automatically because it is a legal interest.
Option E is correct – the best candidate for a good root of title is a conveyance which is at least 15 years old. Although assents & mortgages which are at least 15 years old can be good roots, a conveyance is considered to be a better option. As a result, Options A, C and D are not the best answers on the facts.
In the unregistered system legal interests bind the world. 20 years’ use is relevant to the creation of an easement, not its enforceability. Option B therefore is wrong.
Quick Q:
A buyer purchases a freehold unregistered property (‘the Property’) from a husband and wife. Following completion of the purchase, the buyer is confronted by the wife’s mother who claims that she has an interest in the Property. When the husband and wife originally bought the Property, the mother paid the deposit and has lived in the Property since the husband and wife bought it. The buyer recalls meeting the mother when inspecting the Property, but had no idea she had an interest in the Property.
Which of the following best describes whether the buyer will be bound by the mother’s interest?
The buyer will not be bound as they have overreached the mother’s interest.
The correct option is D.
The mother made a direct financial contribution to the purchase price (the deposit) and this is unlikely to have been a gift. The mother holds a beneficial interest under a resulting trust. This is an equitable interest. Options B and E are, therefore, wrong.
The facts do not indicate that the buyer had actual knowledge of the mother’s interest and option A is, therefore, wrong.
The buyer was likely to have constructive notice of the mother’s interest on the basis that the buyer saw the mother when inspecting the property. This should have prompted the buyer to ask questions of the mother. However, the buyer paid the purchase monies to two trustees (the husband and wife) and this would overreach the mother’s equitable interest. Option C is, therefore, not the best answer.
QUICK Q: A GIFT
Last month, before emigrating to Australia, the then owner (“the Former Owner”) of a house with unregistered title made an outright gift of the house to his cousin who did not have a home of his own. When the Former Owner bought the house a few years ago, his wife paid the deposit and when doing so she made it clear to her husband, the Former Owner, that in paying the deposit she was not doing so as a gift or a loan. Before accepting the gift of the house, the Former Owner’s cousin was shown round the house by the Former Owner and his wife but the cousin was not aware that the Former Owner’s wife had paid the deposit. The Former Owner’s wife, who did not want to emigrate to Australia, is claiming that she is entitled to an interest in the house in consequence of having paid the deposit.
Is the Former Owner’s wife entitled, as a consequence of having paid the deposit, to an interest in the house that is enforceable against the Former Owner’s cousin who now owns the house?
Yes, because the house was gifted to the Former Owner’s cousin.
Option A is correct because the Former Owner’s cousin, not being a purchaser for value of the legal estate, was bound by the implied trust interest of the Former Owner’s wife arising from her payment of the deposit.
Option B is wrong because it is irrelevant that the Former Owner’s cousin was unaware that the Former Owner’s wife had paid the deposit.
Option C is wrong because it is not relevant that the Former Owner’s wife had been living in the house.
Option D is wrong because it is not relevant that the house had been the matrimonial home.
Option E is wrong because there was no requirement on the part of the Former Owner’s cousin to enquire whether the Former Owner’s wife had paid the deposit.
Quick Q:
A client purchased the freehold of a property from a sole seller. The price the client paid to the seller for the property was below market value. Title to the property was unregistered. During the course of the transaction, the conveyancing solicitor acting on behalf of the client discovered that the seller’s mother had originally contributed to the purchase price when the seller had purchased the property, although the property had only been conveyed into the seller’s sole name. The solicitor did not pass any of the information relating to the mother or her contribution to the purchase price on to the client before the purchase completed. The seller’s mother now claims she has an interest in the property and that the client is bound by that interest.
Will the client be bound by the mother’s interest?
Yes, because the client had notice of the mother’s interest.
Option B is correct.
The mother is likely to have an equitable interest in the house because she has contributed to the purchase price.
As title is unregistered, the rules relating to unregistered land apply.
Some equitable interests are capable of being registered as land charges and these are listed under section 2 of the Land Charges Act 1972. An equitable interest under a trust (such as the mother’s) is not capable of being registered as a land charge. Therefore Option E is wrong.
As the interest is not capable of being registered as a land charge, the basic rule in unregistered land applies, namely that equitable interests are enforceable against anyone except the bona fide purchaser of the legal estate for value without notice.
The client appears to be bona fide and is a purchaser. The client has also bought the property for value - it does not matter that the consideration is less than market value so Option C is wrong.
The issue here is that the solicitor was aware of the mother’s interest. Even though the client did not have actual or constructive notice, the client’s solicitor did have actual notice and therefore the client is deemed to have imputed notice.
It would have been possible to overreach the mother’s interest if the client had paid the purchase money to at least two trustees or a trust corporation. However, the facts make it clear that the client purchased the property from a sole seller. Therefore, Option D is wrong.
