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Registered Land Introduction

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(1)

Registered Land Introduction

The Register

Third party rights

Overriding interests

Overreaching

(2)

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)

(3)

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

(4)

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Repealed Land Registration Act 1925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.

(5)

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

(6)

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)

(7)

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.

(8)

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.

(9)

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.

(10)

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.

(11)

Adverse possesion - squatter

Adverse possession requires factual possession of the land, with the

necessary intention to possess and

without the owner’s consent.

(12)

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

(13)

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,

(14)

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.

(15)

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

(16)

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

(17)

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.

(18)

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

(19)

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

(20)

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

(21)

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

(22)

Charges Register

Third party rights which affect the land

Rights which burden the land:

Mortgages

Restrictive covenants

Easements

(23)

Third Party Rights

Enter on Register:

Notice

Restriction

Caution against first registration

Land Registration Act 2002:

Abolition of cautions and inhibitions

Overriding interests

(24)

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.

(25)

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.

(26)

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.

(27)

Priority between Third Party Rights

Date of registration v date of creation?

S.28 Land Registration Act 2002.

Effect of introduction of electronic

conveyancing.

(28)

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.

(29)

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.

(30)

Overriding Interests

Schedule 1

Leases not exceeding 7 years.

Interests of persons in actual occupation of the land.

Legal easements.

Other miscellaneous rights.

(31)

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

(32)

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.

(33)

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

(34)

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.

(35)

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.

(36)

Overriding Interests

Actual Occupation

Chokar v Chokar [1984] F.L.R. 313

Position regarding temporary absence?

(37)

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.

(38)

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.

(39)

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?

(40)

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.

(41)

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.

(42)

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.

(43)

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).

Cytaty

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