This is an extract of our Land Law Problem Question Framework document, which we sell as part of our Land Law Notes collection written by the top tier of Oxford students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Problem Question Notes
Legal v Equitable Rights
? Is proprietary right legal or equitable: (i) Is it capable of existing as legal or equitable?
? S1 LPA 1925 - rights which may be legal i. Estates - fee simple (freehold) & leasehold ii. Interests - easements, mortgages, rights of entry contained in legal lease &rentcharge (ii) Did it come into existence as legal or equitable right?
i. Legal -falls within s1 LPA 1925 + created by deed + registered in acc. w/LRA 2002
? if not registered = equitable (s7 & 27(1) LRA 2002) ii. Equitable - a proprietary right could be equitable for one of 3 reasons: i. not included in s1 (e.g. proprietary estoppel, restrictive covenant etc) ii. included in s1 but no deed used iii. included in s1 & deed used but no registration
= + created in writing OR satisfies conditions for prop. estoppel/implied trusts (CT/RT)
Effect of Legal & Equitable Rights (i) Unregistered land
? Legal right -binding on all disponees
? Equitable right a) Pre-1925 - binding on disponees, except BF purchaser for value of legal estate w/out notice b) Post 1925 - binding on disponees but there may be a defence (ii) Registered land
? Registered legal/equitable right in rem or overriding interest - binding on all disponees
? Once electronic conveyancing system is complete, may make distinction redundant
Unregistered Land Framework
? A transfers unregistered land to C = B's pre-existing legal property right will always bind C& his preexisting equitable right will bind C, unless C has a defence: (i) Scenario 1: B's equitable right is a registrable land charge and either a) B hasn't registered it (Midland Bank v Green - applies even against P w/actual notice, as long as s4 LCA 1972 is satisfied)); or b) B has registered it against incorrect name & C has requested a search against correct one (ii) Scenario 2: B's equitable interests is one of the following: a) Beneficial interest under trust b) Proprietary estoppel c) Equitable easement/restrictive covenant created pre Jan 1926-falls outside LCA 1972 (iii)
.... in which case it's governed by doctrine of notice?C has a defence to B's interest if he's a BF purchaser of legal estate w/out notice (defence not resurrected on subsequent sale to P w/notice)
? BF Purchaser requirements: (i) bona fide - acted in good faith in the purchase (ii) purchaser of value - acquired the estate by act of parties rather than by operation of law (e.g. no adverse possession or gift) (iii) of a Legal Estate - leasehold/freehold (iv) w/out notice: a. actual - matters of which C was aware (hearing rumours not sufficient - but will be for constructive notice) b. constructive - C failed to enquire & law fixed him w/ notice (s199 LPA&Kingsnorth Finance v Tizard) o C entitled to inspect deeds up to 15 years back; if unusual docs, possibly further o P needs to discover identities of occupiers & make enquiries to them - once a person's in possession, P has notice of all his rights, regardless of how unusual (Hunt v Luck) c. imputed - constructive notice of agent/solicitor imputed to P (if same transaction/not fraudulent)
= Can't use BF? Consider:
Problem Question Notes FHS 2012 (i) Did B consent out of his right by representing to C that he didn't have an interest? (Bristol & West Buildings v Henning)
= Yes = B's right is defeated (unless consent is vitiated ? see below) (ii) Did the seller, A, contract to sell to P1 and P2 inconsistently?
= Yes: P1's estate contract has priority Registered Land Framework
(i) A registers property for the 1st time ? Sch1 (overriding interests re 1st registration) (ii) A transfers registered land to C ? B's pre-existing interest (in rem) will affect C if (ss28, 30 LRA): (a) entered on the register (b) an overriding interest - Sch 3 (unregistered interests which override registered dispositions)
= Main overriding interests under Sch 3: i. Para 1 - lease not exceeding 7 years (can be registered if under 3 years ii.?
voluntarily by Notice - City Permanent BS v Miller) Para 2 - almost any right in rem of person in actual or apparent occupation at the time of disposition o "sufficiently proprietary rights" (National Provincial Bank v Ainsworth) o obvious on reasonable inspection + express undertaking (in context of CT such as Binnions, Ashburn) (Lyus v Prowsa)
Actual Occupation a. In occupation
- Lives there but is absent precise moment of disposition for short/ longer spell
- Not main/real home
- Employee (Lloyds Bank v Rosset) or spouse (Strand Securities) is present
- Not there but belongings are
Unless they've been there for a short time b/f disposition (Abbey National v Cann) b. Not in occupation
- Mere fleeting presence (need degree of permanence + continuity) (Abbey National Building Soc v Cann)
- Tenant or guest
- Children under 18 (Hypo Mortgages Services v Robinson)
- Use of right to pass & re-pass + metal staircase on the land (Chaudhary v Yavus) c. Unclear
- Has a no of houses & moves b/w them but happens to be there the time of disposition
* if 1st visit in a year = no occupation (Stockholm Finance Ltd)
= NB: Pre 2002: actual occupation only where disponee could easily discover the occupant's right ? changed by para. 2 Sch. 3 req. that occupation also be apparent; i.e. discoverable&disponee makes inquiries. If he dos & occupant doesn't disclose where reasonably expected to, disponee isn't bound, unless knew about it anyway.
= NB: Post 2002: actual occupation = physical occupation (Williams and Glynn's Bank v Boland) Consenting Out
Person w/overriding interest or registered right consents that disponee won't be bound o Bristol and West Buildings v Henning - unregistered land o Paddington Building Soc v Mendelson- registered land
B as holder of right in rem (e.g. via CT) goes along w/A's steps to sell/mortgage the property, he'll be prevented from setting up against disponee of any interest that would otherwise bind him, on the basis of being estopped from doing so. requirements: i) B must represent that he won't enforce it (apply interpretation of reasonable bystander) by:
- explicit statement
- omission to act (only if B was expected to object - judge by the facts)
= Consider if representation has been vitiated: a. mistake ? disponee won't be able to rely on it
Buy the full version of these notes or essay plans and more in our Land Law Notes.