Registered Land Introduction
•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Repealed Land Registration Act 1925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 Land Absolute 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 Land Possessory 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.
Adverse possesion - squatter
Adverse possession requires factual possession of the land, with the
necessary intention to possess and
without the owner’s consent.
Factual possesion
an appropriate degree of physical control.
a single and exclusive possession,
a single possession exercised on behalf of several persons jointly.
an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.
alleged possessor has been dealing with the land in question as an occupying owner
might have been expected to deal with it
and that no one else has done so
Making an application for registration on the basis of adverse possession
Land Registration Rules 2003, rule 188(1)(a) and (2))
evidence of adverse possession for not less than 10 years (or 60 years for Crown foreshore)
if the application relates to part only of the land in a registered title, it must exhibit a plan
enabling the extent of the land to be identified on
the Ordnance Survey map,
Squatter registered - burdens
general principle, the registration of a
squatter does not affect the priority of any interest affecting the estate (Schedule 6, paragraph 9(2) of the Land Registration Act 2002).
When a squatter is registered as proprietor of the whole or part of an existing
registered title, they will take subject to the same estates, rights and interests that
bound the previous proprietor.
statement of truth - evidence
(rule 215A of the Land Registration Rules 2003).
it is made by an individual in writing
it must be signed by the person who makes it (unless they cannot sign
it need not be sworn or witnessed
it must contain a declaration of truth in the following form: ‘I believe that the facts and matters contained in this statement are true’
if a conveyancer makes the statement or signs
it on someone’s behalf, the conveyancer must
sign in their own name and state their capacity
Conveyance
a. Transfer of title to property from one person to another.
b. The document by which a property transfer is effected.
conveyancer - a lawyer who specializes in the business of conveying properties
Covenants Running with the Land
the covenant is annexed to the estate and cannot be
separated from the land or the land transferred without it.
the original owner as well as each successive owner of the property is either subject to its burden or entitled to its benefit.
It is said to touch and concern the property.
an individual might own property subject to the restriction that it is only to be used for church purposes. When
selling the land, the person can only do so upon an
agreement by the buyer that he or she, too, will only use the land for church purposes.
Restrictive Covenant, specifically limits the use to
which the land can be put. In addition, the covenant runs with the land because it remains attached to it despite subsequent changes in its ownership. This type of
covenant is also called a covenant appurtenant.
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 Land Absolute 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.