Term
| In what year was land registration made compulsory? |
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Definition
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Term
| December 1990... what happened w.r.t registration of land? |
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Definition
| Next time unregistered land is sold, = compulsory to register. |
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Term
| Some basic assumptions in the lecture and lecture notes... |
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Definition
| 1) The interests discussed have been created since the relevant provisions of the LRA 2002 came in to force on 13 October 2003 |
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Term
| How can you register a freehold estate? |
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Definition
| Has to be registered in it's own right... substantive registration |
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Term
| How can you register a leasehold estate |
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Definition
7+ years = substantive registration & it will be entered as a notice on the charges register of the serviant freehold property
3-5yr leases = enter as a notice on the charges register of the freehold estate.
Less than 3yr leases = cannot be registered s33 LRA |
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Term
| How can you register a 3rd party interest (which you're allowed to register)? |
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Definition
| Enter it as a notice on the charges register of the serviant property. |
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Term
| What are registrable dispositions? |
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Definition
THINGS THAT HAVE TO BE SUBSTANTIVELY REGISTERED
Transactions which HAVE to be registered in order for them to be fully acquired (as legal interests/estates) |
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Term
| Which interests/estates have to be substantively registered? |
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Definition
1) Freehold estate
2) Leasehold estate for 7+ years
2b) Leaseholds which are due to start 3-months after the grant date
3) Legal Easements
4) Legal Mortgages
5)Landlord's right of entry |
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Term
| On registered land, which interests/estates have to be registered? |
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Definition
1) Freehold estate (s27(2)(a)
2) Leasehold estate for 7+ years (s27(2)(b)
2b) Leaseholds which are due to start 3-months after the grant date (s27(2)(b)(ii)
3) Legal Easements s27(2)(d)
4) Legal Mortgages s27(2)(f)
5)Landlord's right of entry |
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Term
| What does it mean if something has to be substantively registered? |
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Definition
| It means that it has to be registered in order for it to be legal. |
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Term
| There are three categories of interests... |
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Definition
1) Interests which have to be entered onto the register to be legal (SUBSTANTIVE REGISTRATION)
2) Interests entered on the register
3) Overriding interests |
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Term
| What are the interests/estates which have to be entered onto the register to be legal? |
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Definition
1) Freehold estate
2) 7+ yrs leasehold estate
3) Leasehold starting 3months after
4) Easements
5) Mortgages
6) Rights of entry |
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Term
| For non-freehold estates/interests... where on the register do they appear? |
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Definition
They appear as a notice on the charges register... as a result of substantive registration they are automatically entered as a notice on the, making them enforceable against 3rd parties.
(NOTE - 7+ leases will also have their own register) |
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Term
| Do equitable leases have to be substantively registered? |
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Definition
| NO... substantive registration is a necessary step towards becoming a legal interest/estate... therefore, an equitable lease doesn't have to be registered (it may be equitable because it wasn't registered) |
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Term
| W.r.t interests which CAN be registered... what happens if they aren't registered? |
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Definition
| They will not be enforceable against a buyer for valuable consideration... A purchaser for valuable consideration of an estate registered with absolute title takes the land subject only to overriding interests and entries appearing on the register (s29 LRA) |
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Term
| What are the interests which cannot be registered as a consequence of s33 LRA? |
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Definition
1) Lease for less than 3 years (which starts within 3 months of its creation)
2) interest under a trust of land
3) restrictive covenant between landlord and tenant |
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Term
| W.r.t registration, who has to register? |
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Definition
| The person who holds the interest / estate |
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Term
| w.r.t registration (not including freehold), where would you register your estate/interest? |
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Definition
| You would register it on the register of the land that is burdened by it |
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Term
| What happens if someone fails to register an interest that can be registered? |
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Definition
| A buyer for valuable consideration will not be bound (excl. 3-5yr lease & Implied legal easement) |
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Term
| De Lusignan v Johnson [1973] |
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Definition
A BUYER FOR VALUABLE CONSIDERATION WILL NOT BE BOUND BY AN INTEREST (WHICH CAN BE REGISTERED) BUT WHICH HASN'T BEEN REGISTERED - EVEN IF THE BUYER HAS EXPRESS KNOWLEDGE OF THE INTEREST
The buyer had express notice of an estate contract, but nevertheless took free from it because it had not been protected by registration |
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Term
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Definition
| Restrictions are 'things' which show that the proprietor is under some kind of restriction affectiong his ability to deal with the property. Unless the terms of the restriction are complied with, the registrar WILL NOT register the new buyer. |
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Term
| Where on the register do 'restrictions' appear? |
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Definition
| On the proprietorship register - under the name of the proprietor. |
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Term
| What is the purpose of restrictions? |
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Definition
| It informs the buyer that there are additional things he has to do in order to acquire the property |
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Term
| What is the ONLY type of situation that gives rise to a restriction, that we will study on this course? |
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Definition
| Where there are two or more persons registered as the proprietor of an estate in land. |
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Term
| What happens when there are two or more people registered as the proprietor of an estate in land? |
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Definition
| If there are two or more people registered as the proprietors of an estate in land, the registrar is obliged to enter a restriction to alert any buyers of the need to overreach. |
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Term
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Definition
| It is the process whereby equitable interests under a trust become detached from the land and transferred to the money paid by the buyer, thus enabling a purchaser of a legal estate to take the land free from those interests. |
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Term
| When there is more than one proprietor registered to an estate, what happens w.r.t trusts (NOTE - will be discussed in more detail in co-ownership) |
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Definition
| A statutory trust arises, in order to protect their interests. |
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Term
| In what circumstances will a statutory trust arise? (w.r.t restrictions) |
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Definition
| Where there is more than one registered proprietor for an estate in land. |
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Term
| How is overreaching applicable to situations in which there is more than one proprietor registered to a piece of land? |
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Definition
As, overreaching detaches equitable interests under a trust from the land, and attaches them to money instead...
Where there is more than one proprietor registered to a piece of land |
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Term
| What happens if there is a failure to enter a restriction? (e.g. don't tell the registrar that there are two proprietors) |
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Definition
| Overreaching wouldn't have happened, as the buyer wouldn't have known about the restriction. In this case, whether a buyer is bound, is dependent upon whether the person with the beneficial interest has an interest in the land, and whether they are in actual occupation. (if so, they can rely on schedule 3(2)) |
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Term
| Under what circumstances might an equitable lease, which is between 0-7 years long be overriding? |
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Definition
| Where it satisfies the conditions in schedule 3... |
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Term
| Williams & Glynn's Bank v Boland [1981] |
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Definition
WHERE THERE IS NO RESTRICTION ENTERED ON THE REGISTER, BUT THE PERSION WITH THE BENEFICIAL INTEREST HAS ON OVERRIDING INTEREST (SCHEDULE 3(2)) - IN OCCUPATION + INTEREST IN THE LAND
Husband held the property on implied trust for himself and his wife.
Wife had acquired an interest in the land from financial contributions to the purchase of the home.
Husband mortgaged the property to the bank by legal mortgage.
Husband defaulted
Bank went to re-posess
HELD - bank was not allowed to acquire posession of the house. |
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Term
| A person who has an interest in the land, and who is in occupation of the land may have an overriding interest. According to which statutory provision? |
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Definition
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Term
| According to schedule 3(2) LRA, a person with an interest in the land & who is in occupation of the land MAY have an overriding interest. What are the things that will stop them from having this overriding interest? |
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Definition
1) If it is not disclosed by the interest-holder on reasonable enquiry, and/or
2) it belongs to a person whose occupation would not have been obvious on reasonable inspection of the land and the purchaser also had no actual knowledge of the interest. |
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Term
| Ferrishirst v Wallcite Ltd [1999] |
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Definition
| IF YOU SATISFY THE REQUIREMENTS FOR AN OVERRIDING INTEREST, YOU CAN ONLY HAVE AN OVERRIDING INTEREST W.R.T THE LAND YOU ACTUALLY OCCUPY. |
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Term
| If you are in occupation of the land and you have an interest in the land, but for some reason you haven't managed to protect your interest... what might you be able to rely on? |
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Definition
| Schedule 3 (2) LRA - you may be able to prove you have an overriding interest... if you pass all the tests, your interest will then be enforceable against a 3rd party purchaser of the freehold. |
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Term
| In order to satisfy the requirements for an overriding interest under schedule 3 (2) LRA, what must you do/have? |
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Definition
1) A proprietary interest in the land
2) Be in actual occupation of the land (see case law)
3) If the new buyer made reasonable inquiries, you must have disclosed it to them
4)If it is not apparent that you are in occupation of the land & the 3rd party buyer doesn't know you are, you must have declared it to them. |
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Term
| What is so amazing about schedule 3(2) LRA? |
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Definition
| It can act as a safety net for all those interests which haven't been adequately protected. |
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Term
| If an estate contract is not registered, is there any other way in which it can be enforceable? |
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Definition
| If it can be classified as an overriding interest, by way of schedule 3(2) LRA |
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Term
| In order to have an overriding interest under Schedule 3(2) LRA, you need to have 'actual occupation'...how is this measured? |
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Definition
| Actual occupation is a question of fact and degree; there must be some degree of permanence and continuity. |
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Term
| Can a mortgage ever be an overriding interest? |
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Definition
| NO - because the bank/individual who gives the mortgage would never be in occupation of the land. |
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Term
| What are the cases that can be used to assess whether someone has actual occupation of the land? (in order to satisfy schedule 3 (2)) |
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Definition
Chhokar v Chhokar [1984]
Link Lending v Bustard [2010]
Stockholm Finance v Garden Holdings [1995]
Strand Securities v Caswell
Abbey National Building Society v Cann [1991] |
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Term
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Definition
ACTUAL OCCUPATION - FURNITURE = OCCUPATION (BUT VERY SPECIAL CASE)
Wife went in to hospital to have baby
Husband sold house and went to India
HELD - the wife's furniture was in the house, she was in actual occupation. |
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Term
| Link Lending v Bustard [2010] |
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Definition
ACTUAL OCCUPATION - FURNISHED HOME, C INTENDED TO RETURN, C HAD VISITED THE HOME ON A NUMBER OF OCCASIONS, CONTINUED TO PAY THE BILLS REGULARLY
Concerned a woman suffering from mental illness who was residing in a residential care institution at the time her property was transferred. she claimed an overriding interest in the property.
HELD - the relevant factors to take into consideration included the fact that it was her furnished home to which she intended to return, she continued to visit the property (and had applied to the relevant authorities to be allowed to return home) and she regularly paid the bill. |
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Term
| Stockholm Finance v Garden Holdings [1995] |
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Definition
NO OCCUPATION - PROPERTY NOT MAIN RESIDENCE, KEPT A FEW OF HER BELONGINGS THERE. HAD NOT VISITED IT IN OVER A YEAR.
WEEKLY VISITS OF THE CLEANER AND TWICE WEEKLY VISITS OF HER DRIVER = INSUFFICIENT TO = OCCUPATION
C = saudi princess.
HELD - not in actual occupation
Useful comments...
'not only the length of any absence, but also the reason for it, may be material - a holiday or a business trip may be easier to reconcile than a move to a second home (even though the duration of absence may be the same in each case)'
'there must coma point where the person's absence from his own home is so prolonged that the notion of him continuing to be actual occupation of it becomes unsupportable' |
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Term
| Strand Securities v Caswell |
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Definition
THE OWNER OF THE FLAT COULD NOT OCCUPY THROUGH HIS STEP-DAUGHTER. KEY, SOME OF HIS FURNITURE, AND OCCASIONAL VISITS BY FAMILY = NOT ENOUGH FOR OCCUPATION.
OBITER - HOWEVER, IF IT WERE A SPOUSE LIVING IN THE HOUSE, THAT COULD BE OCCUPATION |
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Term
| Abbey National Building Society v Cann [1991] |
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Definition
NEW HOME, GOING IN AND LAYING CARPETS & PUTTING SOME FURNITURE INTO NEW HOME = NOT ENOUGH FOR ACTUAL OCCUPATION
OBITER COMMENT 'A CARETAKER COULD OCCUPY ON BEHALF OF HIS EMPLOYER, OR A REPRESENTATIVE OF A COMPANY COULD OCCUPY ON BEHALF OF THEIR COMPANY' |
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Term
| When considering actual occupation, what time do they focus on? |
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Definition
| The time of completion. (not the date of it's registration) |
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Term
| Lloyds Bank v Rosset [1989] |
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Definition
| NEED TO BE CONSIDERED TO BE IN OCCUPATION OF THE HOUSE AT THE TIME OF COMPLETION (not the time of registration) |
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Term
| A charge under the Family law Act 1996 |
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Definition
| gives the spouse or civil partner the right to live in the house. DOES NOT give them an interest in the house. However, if a notice of the charge is entered on to the charges register, it will be impossible on a sale for the legally owning spouse or civil partner to give vacant possession until such time as the charge is cancelled. |
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