ux3 reg

Question 1

Enforceability in the registered system - name the four options

Answer 1

Registerable dispositions
Interest which affect a registered estate
Interest of a beneficiary under a trust
Over-riding interests

Question 2

Registerable dispositions are listed in s 27 of LRA 2002 and include;

Answer 2

Legal easements expressly created by deed
Legal charges (mortgages)
Legal leases for over 7 years

Question 3

Registerable dispositions listed in s 27 of LRA 2002 only become legal (and binds buyer i.e. is enforceable) if..

Answer 3

…registered at Land Registry by date of registration of buyer.
(Note: possible overlap with Sch 3, para 2 if legal lease for over 7 years is not registered.)

Question 4

Since 13 October 2003 when the Land Registration Act 2002 came into force, only leases for more than…

Answer 4

..seven years need be substantively registered. Under the Land Registration Act 1925, only leases for a term in excess of 21 years were registrable. Thus many more leasehold estates now appear on the register than was the case in the past.

Question 5

The effect of s 27(1) of the Land Registration Act 2002 is that on the sale of a registered title, completion of the transfer does not transfer the legal estate from seller to buyer. The legal estate remains with the seller and will pass to the buyer only when…

Answer 5

…the buyer’s name is put on the register as the new owner of the land.

Question 6

What are interests which affects a registered estate (IARE)?

Answer 6

a) Burden of restrictive covenant

b) Estate contract e.g. equitable lease, option, equitable easement
Estate contract (also Sch 3 para 2)
Equitable lease where the tenant is in occupation of the land (also Sch 3 para 2)

c) Right under the FLA 1996

Question 7

The deadline for registering an IARE (interest affecting a registered estate) is…

Answer 7

…the date the buyer is registered as the new owner of that land (Section 29 of the LRA 2002).

(Note; possible overlap with Sch 3, para 2, i.e. equitable leases, options)

Question 8

Equitable interests arising under trusts may be registered as a restriction, which will alert a buyer to the need to…

Answer 8

..overreach and does not protect the interest; If buyer fails to over-reach buyer will be prevented from registering the purchase.

Whether or not there is a restriction recorded, the trust interest might be over-riding under Sch 3 para 2 and need over-reaching if buyer is to purchase free of the trust interest.

Question 9

Over-riding interests listed in Schedule 3 of LRA 2002 include;

Answer 9

a) Legal leases for 7 years or less (para 1)
b) Interests of persons in actual occupation (note conditions) (para 2)
c) Legal easements implied on sale of part or created by prescription (note conditions) (para 3)

Question 10

Over-riding interests binds buyer if it exists by date of ..

Answer 10

..completion of sale.

Note; If it is para 2, protecting an interest under a trust, a buyer who has over-reached will not be bound

Question 11

In Strand Securities v Caswell [1965] Ch 958 (a case on s 70(1)(g)), the right to occupy property under the terms of a licence to occupy was….

Answer 11

,,,not an interest in land and could not be an overriding interest.

Question 12

The non-owning spouse’s or civil partner’s right to occupy the matrimonial or civil partnership home under s 30 of the Family Law Act 1996 is **of being an overriding interest as it has been specifically excluded from this provision by s 31(10)(b) of the 1996 Act.

Answer 12

incapable

Question 13

An overriding interest is a third party right that binds the land even though…

Answer 13

…even though there is no entry on the register recording the existence of the third party right.

Question 14

Williams & Glyn’s Bank v Boland required there to be physical ** on the land by the claimant, not just the right to occupy.

Answer 14

presence

Question 15

In the case of Abbey National Building Society v Cann [1991] 1 AC 56, a mother who had an equitable interest in the property was held not to be in actual occupation by…

Answer 15

…merely sending her son to move in her furniture and put up curtains. The court held that the action amounted to ‘no more than taking the preparatory steps leading to the assumption of actual residential occupation’

Question 16

Lloyds Bank plc v Rosset [1989] Ch 350, it was suggested that the claimant, Mrs Rosset, was in actual occupation by …

Answer 16

…visiting the property regularly while it was being renovated in order to supervise the building contractors. In this case she was occupying, so far as it was possible to occupy, a semi-derelict property.

Question 17

In Link Lending Ltd v Bustard [2010] EWCA Civ 424, Ms Bustard was deemed to have been in actual occupation at the time a mortgage over her property was created even though she had been absent for over a year in residential psychiatric care. The Court of Appeal agreed that the original judge could have properly concluded that Ms Bustard was in actual occupation given that….

Answer 17

…her possessions were still in the property, she made regular visits there, bills for the property were paid on her behalf and that she regarded it as home and intended to return to live there, an aspiration that her doctors had not yet ruled out on medical grounds.

Question 18

By contrast, in Thompson v Foy [2010] 1 P&CR 16, the judge held that although the fact that Mrs Thompson’s possessions were still in the property during her temporary absence could be sufficient to establish actual occupation, it was not so in this case because …

Answer 18

…Mrs Thompson had decided that she was never going to return to live there.

Question 19

In Kling v Keston Properties Ltd (1983) 49 P&CR 212, a car was parked regularly in a garage. It was held that this was the normal use of the property and hence could amount to..

Answer 19

..actual occupation.

Question 20

According to Sch 3, para 2 to the Land Registration Act 2002, the over-riding interest afforded by Sch 3 para 3 will exist only if….

Answer 20

▪ the occupation (not the interest) would have been obvious on a reasonably careful inspection of the land at the time of the sale; or

▪ the purchaser had actual knowledge of the interest at the time of the sale. In addition, if enquiries were made of the person holding the interest before the sale, that person must have disclosed it if he could reasonably have been expected to do so.

These conditions were considered in Thomas v Clydesdale Bank Plc [2010] EWHC 2775 (QB).
On the first condition, what is required is ‘visible signs of occupation which have to be obvious on inspection’: there is no requirement on the person inspecting to have any particular knowledge or make reasonable enquiries.

On the second condition, ‘actual knowledge’ means actual knowledge of the facts which give rise to the interest, not receipt of formal evidence of it as in a legal document.

Question 21

Schedule 3 paragraph 2 can save if they haven’t been registered….

Answer 21

…options, contracts to purchase freeholds, equitable leases, so basically estate contracts, legal leases for a term exceeding 7 years that haven’t been registered yet and trust interests.

If those interests exist, if they haven’t been registered, but if the third party is in actual occupation and the rest of Schedule 3 paragraph 2 is satisfied, they can be overriding.

The actual occupation is NOT what is protected by Schedule 3 paragraph 2, - the interest is protected.

Question 22

Schedule 3 paragraph 2 can’t help out and won’t help out with…

Answer 22

…mortgages, easements or covenants, because you can’t be in actual occupation with a covenant, you’re not in actual occupation with an easement, and mortgagees - and by mortgagees I mean lenders, banks, building societies - mortgagees are generally not in actual occupation of the land that they have the security over.