Overreaching, Land Law

Authors Avatar

‘The doctrine of notice now plays a much smaller role in relation to unregistered land than it did before 1925.  In registered land, it plays no part at all – not even with regard to the rights of those in actual occupation’

In critically analysing the above statement, it would be best to understand what the doctrine of notice is, and how and why it came about and where it originates from. In addition to this looking at the implications it had on unregistered land pre 1925 and post 1925, and look at the effect it has  on registered land, if it has any effect at all.

The doctrine of notice can be understood in a simpler way when each word is looked at separately, ‘doctrine’ is commonly referred to as a body of inter related rules .‘notice’ if you have notice of something, you are aware that something exists. The basic principle behind the doctrine of notice is that if there is a piece of land held subject to a trust, if the trustees then decide to sell the property , the purchaser will take the land subject to the beneficiaries equitable interests. An ‘equitable interest’ is ‘interest held by virtue of an equitable title or claimed on equitable grounds, such as the interest held by a trust beneficiary’. Equitable interest is a right that if harmed can be dealt with by an equitable remedy (there are many remedies for equity). In layman’s terms the ‘doctrine of notice’ is a rule which has been accepted stating that the information about any ‘equitable interest’ conjoined with a title should be given to the owner that title, of in the case of someone newly buying land, it should be given to the new title owner of the land. This however does not always happen, as you can see I used the word ‘should’ deliberately. The quote which is used in the question also asks us to consider registered and unregistered land, it would be helpful to explain the distinctions, other than the obvious ones before going head first into the doctrine of notice concerning both these systems.

Unregistered land is clearly land where no title has been ‘registered’. Unregistered land still has legal estates and interests binding over it, and all and any people who take ownership of this land will take the land subject to the legal interests which are attached to it. There is however one exception to this rule, the puisne mortgage Equitable rights in unregistered land fall into three distinct categories, the main bulk of equitable rights fall under ‘land charges’ and are written down in the LCA 1972 ( Land Charges Act 1972),  . Then there are the equitable rights that unfortunately do not fall into the category of land charges, this is due to the fact that they cannot be registered under the LCA 1972 , the fate of these rights are then decided by the old ‘doctrine of notice’. The third category is the rights which do not fall into either of the previous two categories, they cannot be dealt with by the LCA 1972 neither by the ‘doctrine of notice’. These rights are known as ‘overreachable’ these are rights of a ‘special character’ these are rights that can be easily worked out in a monetary value, for example the equitable interest of half of a farm, would be half the price of the whole land. The doctrine of notice is rapidly becoming irrelevant in unregistered land , but still very rarely does apply, the reason for this would be to whether the equitable right has been dealt with under the LCA 1972 or by overreaching. The modern theory of ‘doctrine of notice’ is deeply linked with the idea of ‘equity’s darling’ or ‘ bona fide purchaser(BFP)’ this situation arises when a person purchases an asset for a certain value, and in purchasing this asset does so without doubting the right of the seller to have sold it in good faith. This is however very rare and can be seen to be somewhat unfair, as the resulting consequence if this happened in real life, would be that the purchaser would remain in title of the asset, and the actual owner would have to seek compensation from the person who fraudulently sold the land.  In my view the ‘doctrine of notice’ was set up and matured so there was a safety net for the owner of a legal title, so that he/she would be fully aware of all the equitable interests coupled with that title. The reason for this was so that the owner of the legal title would not become overloaded and burdened with any of those equitable interests. This is a very important factor, for example if X purchased a property, and when purchasing the property he was genuinely unaware (totally unaware) of any of the interests that were attached to the land and unaware of any of the third-party interests in the land, then the interests which are in question would be totally nullified. This can leave a somewhat bitter taste in the mouth of the former owner, as there is only one way in which they can take any action, this would be to take the person who gave them the equitable interest to court, this could be somewhat troublesome as a lost of equitable interests are left in the form of wills, and therefore the person who gave the equitable interest is probably and most unfortunately dead, and has now way of turning up to court, therefore leaving the person with the equitable interest with absolutely nothing. This is a somewhat unfair consequence, but the reality of it is it could actually happen.

Join now!

Notice, this refers to the way in which someone can be made aware of any equitable interests which apply, obtaining this information if possible is key. ‘the operation for the title deeds system for conveyances of estates and interests means that obtaining information is a priority.’ They can be split up into three different types, actual notice, this is when the purchaser has the actual knowledge that these equitable interests exist, this would even count if the person found out from a person who had nothing to do with the course of dealings. Constructive notice ‘a purchaser shall not be ...

This is a preview of the whole essay