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Introduction And Registration Notes

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INTRODUCTORY A.

CONCEPTS AND HISTORY

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Birks, in Land Law Themes and Perspectives (ed Bright & Dewar), ch 18: Five keys to land law and one pervasive theme of facilitation (secondary counter theme of inhibition): o Time: Land is generally permanent so therefore want to deal in slices of time; rule against perpetuities facilities creation of interests but inhibits sterilisation of the land; o Space: Clear that person does not own everything above and below his land, so need to set limits on the interest; possibility of flying freehold; limitation on how can use land (easements); o Realty: Distinction between personal and proprietary rights; see leases/licences. o Duality: Of fundamental importance is the interplay between law and equity; where they differ, equity is to prevail; trust exists where beneficial owner different from legal; also duality in that can divide up ownership e.g. by granting a lease or other legal right overland. o Formality: Land law tends to insist on formality at the contract and conveyance stages; contracts to convey interests in land are void unless made in writing; advantage that makes person think about the transaction and can eliminate doubt about the state of affairs; on occasion an equitable interest may override the legal status e.g. actual occupation.

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Anderson, in Land Law Themes and Perspectives (ed Bright & Dewar), ch 4: A short list can be complied of the ways in which English law pertaining to land is peculiar to other jurisdictions. This is as a result of the enactment of the 1925 Law of Property Act (seen to be a compromise on all fronts): o Reduction of legal estates to the bare minimum: no legal life estates. o Reduction of common law co-ownership to joint tenancy, limited to a maximum of 4 persons. o Allowing abolished legal estates and forms of co-ownership to exist in equity as trusts. o Stipulating that the list of recognised equitable interests is now deemed to be closed. o Regime of overreaching. o Virtual abolition of the doctrine of notice. o Mortgage by charge, or long lease, but not by transfer of title. o Existence of two land transfer systems: private conveyance by deed (now abolished), or registration.

REGISTRATION AND (OTHER) FORMALITY RULES A.

UNREGISTERED LAND

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Hunt v Luck [1902] 1 Ch 428: Rent was paid to a solicitor for a person other than legal owner; issue as to whether knowledge of that fact constituted notice of the rights of the recipient of rent payments. Vaughan Williams LJ: o If a purchaser knows that the vendor is not in possession he must make enquiries of the person in possession and find out from him what his rights are; if he does not do that rights will be subject to those of the tenant in possession; o Actual knowledge that paid to someone inconsistent with the title of the vendor will be constructive notice of that person's rights, but mere knowledge that they are paid to an intermediary is no notice.

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Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783: Husband and wife made contributions towards purchase of home, with title registered in the name of the husband alone. After separation the wife stayed on some nights; husband tried to obtain second mortgage. Mortgagee sent agent to visit; agent did not pass on information that the husband had recently split from the wife. Mortgage company sought possession; wife claimed her interest. o If a mortgagee carries out such inspections as ought reasonably to be made and does not find the third party in occupation or evidence of their occupation, then will not be fixed with notice of their rights. o Where the object of inspection is to ascertain occupation, then an inspection at a time pre-arranged with the vendor might not meet that object (so not 'reasonable inspection'). Must depend on circumstances. o There does not need to be continuous and uninterrupted presence for a person to be considered in occupation of property; nor is the presence negative by a regular and repeated absence.
? Follows guidance in Williams & Glyn's Bank v Boland and Hodgson v Marks even though they are in the context of registered land; thinks that would have been protected under s70(1)(g).

1 o Thought that if had made proper enquiries would have discovered; therefore subject to s199(1 )(ii)(a).

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Law of Property Act 1925 ss 198, 199: o 198: Registration of any instrument or matter as a Land Charge shall be deemed to constitute actual notice of it to all persons connected with land, from the date of registration or other prescribed date. o 199:Purchaser will not be prejudicially affected by notice of:

* Anything capable of registration under Land Charges Act not registered;

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Any other instrument or matter unless: o Within knowledge or could have come to light if made inspections as ought reasonably to be made, or; o Same as above with regards to agents.

Above will not exempt purchaser where obligation to perform or observe covenant, condition, provision or restriction is contained in the instrument from which he derives title.

Land Charges Act 1972 ss 2, 4(5)(6), 10(4), 17 o 2: Lists classes of Land Charges which may be registered:Class A:

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*Class B:

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Anything of the kind above created by other means.

Class C:

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*Rent or annuity which is a charge on the land not created by deed, created pursuant to application of person under the provision of any Act of Parliament, for securing costs met by him under the Act or money spent by other under the authority of Act; Rent or annuity money payable created pursuant to application of some person under any of the enactments mentioned in Schedule 2 of this Act.

Puisne mortgage (legal mortgage not protected by deposit of documents of title); Limited owners charge (equitable charge acquired by tenant for life or statutory owner) General equitable charge (not secured by deposit of legal documents; does not arise or affect an interest under a trust of land or settlement; is not given by way of indemnity against rents apportioned; not included in any other class of land charge) Estate contract (such as option to purchase, right of pre-emption or the like).

Class D:

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Inland Revenue Charge; Restrictive covenant (other than between lessor/lessee); Equitable easement;

Class E:

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Annuity created before 1st January 1926 and not registered;

Class F:

* Land charge affecting land by virtue of Part V Family Law Act 1996. o 4(5)(6): Effect of land charges:
? Class B & C (except estate contract) will be void against purchaser if not registered;
? Class D will be void against purchaser for money or money's worth unless registered. o 10(4): Official searches:
? A certificate as found will be conclusive according to its tenor. o 17: For interpretation of various concepts found in the Act.

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Midland Bank v Green [1981] AC 513: F granted S a ten year option to purchase land which he farmed as a tenant. Failed to register. F conveyed property to M at gross undervalue with intent to deprive S of the option. Lord Wilberforce: o Refusal to read the requirement of good faith into land charges act;Thought that Parliament intended to omit it;

2 ? Also problem of trying to enquire into state of people's minds/motives for action; o There is nothing in the Act which suggests that the money paid cannot be nominal; claim failed. B.

LAND REGISTRATION A general summary of the changes in Law Com No 271, Parts I and II:

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The purpose of the Land Registration Act 2002 was to create the necessary legal framework in which registered conveyancing can be conducted electronically. In addition to this a number of substantive changes were made, designed to alter the way in which title to land is to be perceived. Objectives of the Act: o Mirror Principle: Register should be a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land online, with the absolute minimum of additional enquiries and inspections. o Curtain Principle: Should not have to look behind the register to find hidden interests. o Compensation Principle: If any person suffers loss as a result of some mistake or omission in the register of title, he or she is entitled to be indemnified for that loss. In order to achieve the fundamental objectives following changes to be made o Requirement of compulsory registration extended to leases granted for more than 7 years, with power to reduce the length of registrable leases still further; o Owners of registered land will be presumed to have unrestricted powers in the absence of any entry ; o Rules as to the competing priority of interests in registered land will be clarified and simplified; o Extension of notices and restrictions and the prospective abolition of cautions and inhibitions; o The range of overriding interests will be significantly restricted in their scope: the ambit of particular categories of overriding interests will be narrowed, some categories will be abolished altogether and others will be phased out after 10 years; o New system of independent adjudication of disputes arising out of applications to be set up; o Power to make electronic conveyancing compulsory to be included in the draft bill.

1. General; minor interests

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Land Registration Act 2002 ss 3-11, 28, 32-36, 40-41, 44, 58, 72, 77, 115, 116, 118: o 3: When title may be registered:
? Section applies to any unregistered estate which is an interest in:

* Estate in land;

* Rentcharge;

* Franchise;

* Profit a pendre in gross;
? A person may apply to be registered proprietor of above if:

* Estate is vested in him, or;

* Entitled to require the estate to be vested in him;
? Application in respect of a leasehold estate may only be made where more than 7 years of term

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is unexpired;
? Above does not apply if right to possession is discontinuous;
? Cannot make application under s2 if a mortgagee that has subsisting right of redemption.
? Cannot make application if entitlement is as a person who has contracted to buy;
? If person has lease in possession and has been granted extension then can treat the terms as continuous. 4: When title must be registered:Requirement of registration occurs with any of the following events:

* Transfer of a qualifying estate;

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Disposal by a landlord to which leads to someone not being a secure tenant; The grant out of a qualifying estate of land of a term of more than 7 years; Grant of a term to take effect more than three months in the future; Creation of first protected legal mortgage;

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