First Registration of Title:
Today, any dealing in a legal estate which has an unregistered title will make it subject to compulsory registration. The 2002Act refers to ‘events’ triggering compulsory registration. The only estates which can continue to have unregistered title are those estates which are not subject to any dealing at all in the title. The 2002Act makes registration compulsory on any event concerning the estate. According to s.2 some of these include a gift of an unregistered estate, a transfer in pursuance of an order of the court and the creation of first legal mortgage of a free hold which has more than 7 years to run.
A key change under the new Act is that it is a move from a system of registration of title to one where the fact of registration itself gives a person title to the land. Registration of title is now compulsory when any of a list of ‘trigger’ events occurs, such as grant of a lease for more than seven years, transfer of an existing lease with more than seven years to run, and of course sale of a fee simple.
Duty to register under 2002 Act:
When unregistered land is dealt with in such a way as to give rise to an event which triggers compulsory registration, the time starts to run in which registration must take place .registration must take place within two months of the relevant period under s.6(4).the period can be extended by the Registrar if he is satisfied that there is good reason to do so. Failure to register within the time limit will result in the transfer becoming void.
Principles of registration system:
The system is described as being based on 3 principles: The Mirror Principle –the rights and interests shown on the register should mirror those existing on the land. The Curtain Principle - To maintain simplicity in respect of the legal title, Trusts are not set out on the register. They are entered as a restriction so that a purchaser knows that the proceeds of sale must be paid to at least two named trustees to ensure overreaching the equitable interests under the rust.The Insurance Principle - The accuracy of the registered is guaranteed by the State, and an indemnity may be available to injured parties.
Interests of persons in actual occupation:
The system of registration of title is to ensure that the purchaser is able to see the exact state of the title of the land he is buying. An accurate register of title will show the purchaser what rights and encumbrances attach to the land. However there remain some rights which are non discoverable by searching the register. They are called interests that override. This is potentially very dangerous for purchasers because unwittingly they may find that the land is bound by some rights which effect their enjoyment to such an extent that they would never have contemplated purchasing the land if they had known about it. So, overriding interests are interests which are binding on the registered proprietor despite not being on the register. Many of the overriding interests (originally contained in s. 70 LRA 1925) are binding on a purchaser only if they are protected by the relevant entry on the register, and the new list of overriding interests in Schedule 3, para. 2, LRA 2002 is very much depleted. Where an interest is capable of entry on the register however, its registration is essential if it is to bind a purchaser of the land, and it will only be binding if it is so registered unless it can be brought within one of the overriding interests listed in Schedule 3, para .2.
Under the LRA2002, schedule 3, para.2, an interest belonging to a person in actual occupation of land at the time of disposition is protected as a overriding interest. The effect of LRA2002, s .29(1)and the sched 3 para 2 is to make it clear that such an interest must be proprietary , not a personal, nature. A person claiming such an overriding interest must establish actual occupation at the time of the completion of the disposition.
Actual Occupation:
This requires some physical presence on the land which itself has a degree of permanence
and continuity. Temporary absences, even at the exact time of the disposition, may not prevent a finding of actual occupation, so long as the reason for such absence can be justified.
In Abbey v Cann, a purchaser could not to be said to be in actual occupation where only a few items of furniture were in property prior to occupation. Minor children cannot be in actual occupation in their own right. Their rights are dependent on their parent’s rights in the property. In the case of Hypo-Mortgage v Robinsonit was held that infant children could not be in actual occupation of property.
Beneficial interests may be held either jointly or in common. Unless there is evidence to the contrary, the presumption will be that ‘equity follows the law’ and that the beneficial interests are held as a joint tenancy.where the beneficial interests is held as a joint tenancy, none of the joint tenants have ‘shares’ in the property. Any attempt by a joined tenant to leave his ‘share’ of the property by will, will be infective. Pettit v Pettit which held that a cohabiter could acquire a beneficial interest in a property where legal title was held by another. However, Celsteel Ltd v Alton House Holdings Ltd had previously established that it was possible for some equitable interests to become overriding interests. Another interesting case was Webb v Pollmount where the court held that an option to purchase the reversion contained in a seven-year lease was protected under s. 70(1) by virtue of the tenant’s occupation under the lease. This is an obvious example of how "every type of property right in land can be an overriding interest provided there is actual occupation at the relevant time by its owner" under s. 70(1)(g). It is clear from the range of issues covered by these decisions that overriding interests are in no way only "minor liabilities". In addition, their existence means that absolute title cannot be absolute. Observably, the fact that third-party rights can exist, which cannot be readily discovered by referring to the register, severely undermines the complete picture approach advocated by the "Consultative Document".
PROTECTED INTERESTS:
Under the 2002 Act there are now only two methods of protection for registered incumbrances i.e. the notice and the restriction. Under s.32the notice can either be entered with the consent of the registered proprietor or unilaterally. If it is the latter, the registered proprietor can object and the Registrar decides the validity of the claim. Entry on the register does not mean that the interest is recognised by the law as valid; it simply means that it has priority over other interests according to s. 32(3) LRA2002. Certain interests cannot be protected by the entry of the notice example could be lessees for less than 3 years.
By a restriction: section44(1) provides that where two or more persons are registered as proprietors, a restriction must be entered to ensure that interests capable of being overreached, in fact, are overreached. this applies where the beneficial interests is held under a tenancy in common as the beneficial interest is held in separate shares, but not where it is held under a joint tenancy where the beneficial interest will vest in the surviving joint tenant.
Conclusion:
Overall, the LRA 2002 improves upon the unregistered system of land by attempting to balance the rights of purchasers with those holding third-party interests.
Bibliography
Books :
- Gray & Gray, Core Texts: Land Law (4th edn, 2005, OUP)
- Green & Cursley, Land Law (5th edn, 2004, Palgrave Macmillan)
- Martin, EA (ed.), Dictionary of Law (2003, OUP)
- Smith, R, Property Law: Cases and Materials (2nd edn, 2003, Longman)
- Thompson, M, Modern Land Law (2nd edn, 2003, OUP)
- Bogusz, B, “Bringing Land Registration into the Twenty-First Century – The Land Registration Act 2002” MLR 2002, 65(4), 556-567
- Dixon, M, “The Reform of Property Law and the Land Registration Act 2002: A Risk Assessment” Conv. 2003, Mar/Apr, 136-156
- Kenny, P H, “Children Are Spare Ribs” Conv. 1997, Mar/Apr, 84-85
- Pascoe, S, “Triumph for Overriding Interests” Conv. 1999, Mar/Apr, 144-149
- Smith, R J, “Overriding Interests and Wives” (1979) 95 LQR 501
- Sparkes, P, “The Discoverability of Occupiers of Registered Land” Conv. 1989, Sep/Oct, 342-354
- Tee, L, “The Rights of Every Person in Actual Occupation: An Enquiry into section 70(1)(g) of the Land Registration Act 1925” (1998) 57 CLJ 328
- “Remedies: No Overriding Interest” P.L.B. 2002, 22(7), 52
- Law Commission, Land Registration for the Twenty-First Century (1998) Law Com No 254
Joint Law Commission and HM Land Registry Report (2001) Law Com 271
- Boone, K (2004), Actual Occupation. Retrieved on 19th November 2005 from the World Wide
-
Routledge Land Law 7th edn, Routledge, Law Card Series, 2011
-
Margaret Wilkie, Peter Questions and answers land law,8th edn Oxford,2010 and 2011
-
Judith Bray, unlocking Land Law(2nd edn Hodder Education 2007
-
Megarry & Wade, The law of real property,(7th edn, Sweet & Maxwell 2008
Cases:
- Hypo-Mortgage v Robinson [1997] 2 FLR 71
- Lloyd v Rosset [1989] CH 350
- Hodgson v Marks [1971] Ch 892
- Lloyd v Dugdale [2002] 2 P& CR 13
- Malory Enterprises v Cheshire Homes [2002] 3 WLR 1
- Chhoker v Chhokar [1984] FLR 313
- Link v Bustard [2010] EWCA Civ 424
- Thompson v Foy [2009] EWHC 1076 (Ch)
- Stack v Dowden[2007] AC 432
- Superstore v Hurst [2005]
-
Carr v Isard [2006] EWHC 2095
- Pettit v Pettit[1970] AC 777
-
Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204
- Webb v Pollmount [1966] 1 Ch 584
- William v Boland [1981] AC 487
- Abbey v Cann [1991] 1 AC56
- Jones v Kernott [2010] EWCA Civ 578
- Adekunle v Ritchie [2007] EW Misc 5 (EWCC)
Legislation :
- Law of Property Act 1925
- Land Registration Act 1925
- Land Registration Act 2002
- Land Registration Rules 2003
Journals studied:
- Conveyancer and Property Lawyer 2010 Editorial Editor's notebook (May/June)
- Conveyancer and Property Lawyer 2010 Case Comment HSBC Bank Plc v Dyche: getting your priorities right
- Cambridge Law Journal 2010 Publication Review Constructive and Resulting Trusts Edited by Charles Mitchell Reviewed by Brian Sloan
Websites;
-
.uk
- http://www.lexisnexis.co.uk/
Kevin Gray & Susan,Elements of Land Law(4th edn,Oxford University Press,2005)
Land Registration Act 2002
Land Registration Act 2002
Schedule 4 and 8 LRA 2002
Margaret Wilkie, Peter Questions and answers land law(8th edn Oxford,2010 and 2011 )page 37.
Abbey v Cann [1991] 1 AC56
Hypo-Mortgage v Robinson [1997] 2 FLR 71
Stack v Dowden[2007] AC 432
Superstore v Hurst [2005]
Carr v Isard [2006] EWHC 2095
Pettit v Pettit[1970] AC 777
Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204
Webb v Pollmount [1966] 1 Ch 584