registered land introduction the register third party rights overriding interests overreaching

Registered LandIntroduction

•The Register

•Third party rights

•Overriding interests

•Overreaching

Registered Land

1925 Property legislation

• In force 1st January 1926:– Law of Property Act 1925– Land Registration Act 1925 (2002)– Land Charges Act 1925 (1972)

Registered Land

Land Registration Act 1925“introduced for the first time …a power in

central government to designate areas in which registered conveyancing would be compulsory.”

• Compulsory registration.• H.M. Land Registry.• District Land Registries.• www.landreg.gov.uk

Registered Land

Land Registration Act 2002

• In force 13th October 2003.• Repealed Land Registration Act 1925• Lays foundations for electronic

conveyancing.• Most fundamental reform of property

law since 1925.

The Register• Not a register of land but ownership of land

– Fee simple absolute in possession (freehold)– Term of years absolute (leasehold)

• Register divided into 3 parts:– Property register– Proprietorship register– Charges register

• Documentation:– Land/Charge certificates– ‘dematerialisation’ of documents– Title Information Document

Property Register

Identifies the land

• Freehold/leasehold

• Description (postal address)

• Reference to plan (title plan)

• Title number

• List rights which property benefits from (i.e. easements)

Proprietorship Register

Identifies the owners of the land

• Name and address of current registered proprietors

• Grade of title

• Details of any restrictions limiting the registered proprietors rights to deal with the land.

Proprietorship Register

Grades of Title – Freehold LandAbsolute Title

• Best grade of title• S.26 Land Registration Act 2002• Subject to:

– Entries on the register (i.e. 3rd party rights).

– Overriding interests.

Proprietorship Register

Grades of Title – Freehold LandPossessory Title

• Not as good as absolute title• Subject to:

– Entries on the register.– Overriding interests.– Adverse pre-registration estates, rights or interests.

• Upgrade to Absolute title?– S.62 Land Registration Act 2002.

Adverse Possession

• Limitation Act 1980:– S.15: Limitation period for recovery of land 12 years.– S.17: at end of 12 year period original owner looses

both the right to sue and title to the property.

• Land Registration Act 2002:– Apply to be registered as proprietor after 10 years

adverse possession.– Registered proprietor notified.– If still in occupation after a further 2 years will be

registered as proprietor.

Proprietorship Register

Grades of Title – Freehold Land

Qualified Title

• Defect in title

• Subject to:– Entries on the register– Overriding interests– Defect noted on the register

Proprietorship Register

Grades of Title – Leasehold LandAbsolute Title

• Provide evidence of both freehold and leasehold title

• Subject to:– Entries on the register– Overriding interests– Covenants in the lease

Proprietorship Register

Grades of Title – Leasehold Land

Good Title

• No evidence of freehold title

• Subject to:– Entries on the register– Overriding interests – covenants in the lease

Proprietorship Register

Grades of Title – Leasehold Land

Possessory Title• Same as for freehold land• No guarantee of freehold title• Can be upgraded to Good Leasehold title

after 12 years

Qualified Title• Same as for freehold land

Charges Register

Third party rights which affect the land

• Rights which burden the land:– Mortgages– Restrictive covenants– Easements

Third Party Rights

• Enter on Register:– Notice– Restriction– Caution against first registration

• Land Registration Act 2002:– Abolition of cautions and inhibitions

• Overriding interests

Notices• S.32 – 39 Land Registration Act 2002.• Agreed notice.• Unilateral notice.• Leases (exceptions) /easements/restrictive covenants

(exceptions)/estate contracts.• Spouse’s right to occupy matrimonial home (Family

Law Act 1996).• Interests requiring registration under s.27 Land

Registration Act 2002.• Exceptions: s.33 Land Registration Act 2002.

Notices

• S.33 Land Registration Act 2002:– 5 interests that cannot be protected by the

entry of a notice:• Interests under a trust or settlement• An interest in any coal or coal mine• A lease granted for 3 years or less• Restrictive covenants made between a landlord

and a tenant• An interest capable of registration under the

Commons Registration Act 1965.

Restrictions

• S.40 – 47 Land registration Act 2002.

• Prevent any dealings in the land that are inconsistent with the terms of the restriction.

• Example: Prevent registration of land unless specified consents obtained.

Priority between Third Party Rights

• Date of registration v date of creation?

• S.28 Land Registration Act 2002.

• Effect of introduction of electronic conveyancing.

Overriding Interests

• Major exception to principle that purchaser need not be concerned with interests that are not entered on the register.

• No requirement to register.

• Notice irrelevant.

Overriding Interests

• Schedules 1 & 3 Land Registration Act 2002.

• Schedule 1: Unregistered interests which override first

registration.

• Schedule 3: Unregistered interests which override registered

dispositions.

Overriding Interests

Schedule 1

• Leases not exceeding 7 years.

• Interests of persons in actual occupation of the land.

• Legal easements.

• Other miscellaneous rights.

Overriding Interests

Schedule 3• Lease not exceeding 7 years.• Interests of persons in actual

occupation of the land.– Exceptions.

• Legal easements.– Exceptions.

• Other miscellaneous rights

Overriding Interests

Interests of persons in actual occupation of the land

• Requirements:– Right in the land.– Actual occupation.– None of the Schedule 3 exceptions apply.

Overriding Interests

Rights• Occupation in itself not enough.

• Common right contribution to purchase price but contributor is not registered as a proprietor.

• Strand Securities v Caswell [1965] Ch 958

Overriding Interests

Actual Occupation

• Williams & Glyn’s Bank Ltd v Boland [1981] A.C. 487

– Occupation is a question of fact.– Wife’s occupation is separate to that of her

husband.

Overriding Interests

Actual Occupation

• Abbey National Building Society v Cann [1991] A.C. 56

– Degree of permanence and continuity required in order to establish actual occupation.

Overriding Interests

Actual Occupation

• Chokar v Chokar [1984] F.L.R. 313

– Position regarding temporary absence?

Overriding Interests

Enquiry‘If the person with the interest was asked before the disposition occurred and s/he failed to disclose their interest when they could reasonably have been expected to do so.’

• London & Cheshire Insurance Co Ltd v Laplagrene Property Co Ltd [1971] Ch 499.

• Hodgson v Marks [1971] Ch 892.

Overriding Interests

Inspection‘If the persons occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition and the person to whom the disposition is made did not have actual knowledge of the interest at the time.’

• New provision in Land Registration Act 2003.• Occupation that must be obvious, not the interest.

Overriding Interests

Express/implied waiving of right to priority

• Paddington Building Society v Mendelsohn (1985) 50 P & CR 244.

– Implied consent to mortgage taking priority?

Overreaching

• Applies to registered and unregistered land

• Operates to transfer equitable ownership of land into equitable ownership of money (sale proceeds)– City of London Building Society v Flegg

[1988] A.C. 54– State Bank of India v Sood [1997] 1 All

E.R. 169.

Overreaching

Statutory Criteria• Equitable interest must be capable of

being overreached.– Limitation to equitable interests that can be

overreached (s.2(3) Law of Property Act 1925).

– Excludes equitable mortgages, equitable easements, restrictive covenants and estate contracts.

Overreaching

Statutory Criteria• Transactions capable of having an

overreaching effect (s.2(1) Law of Property Act 1925). Conveyance made by:– Settled Land Act 1925 powers.– Trustees of land.– Mortgagee or personal representative– Under an order of the court.

Overreaching

Statutory Criteria

• Only operates in favour of a purchaser of the legal estate (s.2(1) Law of Property Act 1925).

• Includes mortgagees.

• Capital monies must be applied appropriately (pay to 2 trustees).