#3531 - Registration - Land Law

REGISTRATION/UNREGISTERED LAND

• Legal v Equitable Rights

• Is proprietary right legal or equitable:

1. Is it capable of existing as legal or equitable?

• S1 LPA 1925 –rights which may be legal

1. Estates – fee simple (freehold) & leasehold

2. Interests – easements, mortgages, rights of entry contained in legal lease &rentcharge

2. Did it come into existence as legal or equitable right?

1. Legal –falls within s1 LPA 1925 +created by deed + registered in acc. w/LRA 2002

• if not registered = equitable (s7 & 27(1) LRA 2002)

2. Equitable – a proprietary right could be equitable for one of 3 reasons:

1. not included in s1 (e.g. proprietary estoppel, restrictive covenant etc)

2. included in s1 but no deed used

3. included in s1 & deed used but no registration

• +created in writingORsatisfies conditions for prop. estoppel/implied trusts (CT/RT)

• Effect of Legal & Equitable Rights

1. Unregistered land

• Legal right –binding on all disponees

• Equitable right

1. Pre-1925 - binding on disponees, except BF purchaser for value of legal estate w/out notice

2. Post 1925 – binding on disponees but there may be a defence

2. Registered land

• Registered legal/equitable right in rem or overriding interest – binding on all disponees

• Once electronic conveyancing system is complete, may make distinction redundant

• Unregistered Land Framework

• A transfers unregistered land to C = B’s pre-existing legal property right will always bind C& his pre-existing equitable right will bind C, unless C has a defence:

1. Scenario 1: B’s equitable right is a registrable land charge and either

1. B hasn’t registered it (Midland Bank v Green – applies even against P w/actual notice, as long as s4 LCA 1972 is satisfied)); or

2. B has registered it against incorrect name & C has requested a search against correct one

2. Scenario 2: B’s equitable interests is one of the following:

1. Beneficial interest under trust

2. Proprietary estoppel

3. Equitable easement/restrictive covenant created pre Jan 1926–falls outside LCA 1972

3. .... in which case it’s governed by doctrine of noticeC has a defence to B’s interest if he’sa BF purchaser of legal estate w/out notice (defence not resurrected on subsequent sale to P w/notice)

• BF Purchaser requirements:

1. bona fide – acted in good faith in the purchase

2. purchaser of value –acquired the estate by act of parties rather than by operation of law (e.g. no adverse possession or gift)

3. of a Legal Estate – leasehold/freehold

4. w/out notice:

1. actual – matters of which C was aware (hearing rumours not sufficient - but will be for constructive notice)

2. constructive – C failed to enquire & law fixed him w/ notice (s199 LPA&Kingsnorth Finance v Tizard)

• C entitled to inspect deeds up to 15 years back; if unusual docs, possibly further

• P needs to discover identities of occupiers & make enquiries to them – once a person’s in possession, P has notice of all his rights, regardless of how unusual (Hunt v Luck)

3. imputed – constructive notice of agent/solicitor imputed to P (if same transaction/not fraudulent)

• Can’t use BF? Consider:

1. Did B consent out of his right by representing to Cthat he didn’t have an interest? (Bristol & West Buildings v Henning)

• Yes = B’s right is defeated (unless consent is vitiated see below)

2. Did the seller, A, contract to sell to P1 and P2 inconsistently?

• Yes: P1’s estate contract has priority

• Registered Land Framework

1. A registers property for the 1^st time Sch1 (overriding interests re 1^st registration)

2. A transfers registered land to C B’s pre-existing interest (in rem) will affect C if (ss28, 30 LRA):

1. entered on the register

2. an overriding interest - Sch 3 (unregistered interests which override registered dispositions)

• Main overriding interests under Sch 3:

1. Para 1 – lease not exceeding 7 years (can be registered if under 3 years voluntarily by Notice - City Permanent BS v Miller)

2. Para 2 – almost any right in rem of person in actual or apparent occupation at the time of disposition

• “sufficiently proprietary rights” (National Provincial Bank v Ainsworth)

• obvious on reasonable inspection + express undertaking (in context of CT such as Binnions, Ashburn) (Lyus v Prowsa)

• Actual Occupation

1. In occupation

• Lives there but is absent @ precise moment of disposition for short/ longer spell

• Not main/real home

• Employee (Lloyds Bank v Rosset) or spouse (Strand Securities) is present

• Not there but belongings are

• Unless they’ve been there for a short time b/f disposition (Abbey National v Cann)

2. Not in occupation

• Mere fleeting presence (need degree of permanence + continuity) (Abbey National Building Soc v Cann)

• Tenant or guest

• Children under 18 (Hypo Mortgages Services v Robinson)

• Use of right to pass & re-pass + metal staircase on the land (Chaudhary v Yavus)

3. Unclear

• Has a no of houses & moves b/w them but happens to be there @ the time of disposition

• if 1^st visit in a year = no occupation (Stockholm Finance Ltd)

• NB: Pre 2002: actual occupation only where disponee could easily discover the occupant’s right changed by para. 2 Sch. 3 req. that occupation also be apparent; i.e. discoverable&disponee makes inquiries. If he dos & occupant doesn’t disclose where reasonably expected to, disponee isn’t bound, unless knew about it anyway.

• NB: Post 2002: actual occupation = physical occupation (Williams and Glynn’s Bank v Boland)

• Consenting Out

• Person w/overriding interest or registered right consents that disponee won’t be bound

• Bristol and West Buildings v Henning – unregistered land

• Paddington Building Soc v Mendelson– registered land

• B as holder of right in rem (e.g. via CT) goes along w/A’s steps to sell/mortgage the property, he’ll be prevented from setting up against disponee of any interest that would otherwise bind him, on the basis of being estopped from doing so. requirements:

1. B must represent that he won’t enforce it (apply interpretation of reasonable bystander) by:

• explicit statement

• implication

• omission to act (only if B was expected to object – judge by the facts)

• Consider if representation has been vitiated:

1. mistake disponee won’t be able to rely on it

2. duress, undue influence, misrep agreement is voidable, not void, so will have legal effect until set aside (could be set aside only if disponee had notice of either of these 3 when acquiring (i.e. actual knowledge)

2. Purchaseracted in reliance on that representation in such a way that it’s inequitable for B to enforce it

• LCA 1972

• System for registeringltd no of interests in unreg. land against legal title holder’s name (mostly equitable)

• Registered Land governed by LPA 1925, LRA 2002 & common law

• Classification of proprietary rights (4 statutory classes)

1. Registrableestates– legal freeholds & leaseholds (must be registered on transfer & creation – s4, 27)

2. Registrablecharges - legal mortgages of registered land

3. Overriding interests – affect purchasers w/out being protected by entry on the register

4. Protectable registrable interest (former ‘minor interests’ under LPA 1925) – TP property interests

• Under LRA 2002, unless property right amounts to registrable estate (i.e. has priority w/out registration) or registrable charge (should be registered as a mortgage) or overriding interest (has priority w/out registration), it must be entered on the register of title of the burdened land by means of Notice (agreed/unilateral – s34 LRA) in order to preserve effectiveness against P (i.e. protectable registrable interests, incl. easements & some covenants)

• System of Registration of title

• Most interests can now only be legal once registered

• compulsory registration applies to land that’s being transferred but until then the old rules apply

• Interest can only become legal via registration otherwise, it’s equitable

• although latter needs to be registered too, unless it’s an overriding interest

• P’s interests, once registered, can’t be defeated (but see...