LAND REGISTRATION

Land Registration Act 2002, s 28

• default rule for land priority (when a dispute occurs between two people with the same piece of land, the person who got their right first wins)

• would not matter if the interests are registered or not

• only applies when s29 (special priority rule) does not occur

Land Registration Act 2002, s 29

exceptions to s28

"Buyer takes free"—protects purchasers for value from anything not on the register or overriding.

This protection only kicks in once the buyer registers their new ownership.

ACTUAL OCCUPATION

Williams and Glyn’s Bank Ltd v Boland

• Lord Wilberforce- ‘a fact of occupation that matters’

• requires a ‘physical presence on the land and not some entitlement in the law’

Abbey National Building Society v Cann [1991] 1 AC 56

‘occupation’ is a concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied

Malory Enterprises Ltd v Cheshire Homes UK Ltd [2002] CH 216.

occupying land depends on the type of property:

• undeveloped land where a housing development was going to be built

• company maintained fences around the land and taken other physical measures to exclude trespassers

• court considered this amounted to ‘actual occupation’- all the land is capable of- undeveloped

• Arden J (para 80): ‘residence is not required.. must be some physical presence, with some degree of permanence and continuity’

Baker v Craggs [2016] EWHC 3250 (Ch), [2017] Ch 295

occupation will mean different things according to the nature and purpose of the property

goes beyond ‘mere fleeting presence’

Occupation is distinct from use- even if using property, doesn’t men you’re going to occupy it (Chaudhary v Yavuz- staircase is used not occupied)

Link Lending v Bustard

• Mrs B- suffering from sever psychiatric illness-hospitalised

• left her home and hadn’t occupied her home for over a year

• has regular short intervals to return home with a member of staff

• courts held- still in actual occupation, despite the lack of permanence and continuity- absence does not undermine actual occupation

• long absence is beyond her control- illness

• intention is to return to her property once recovered

Stockholm Finance v Garden Holdings Ltd

contrasts form Busting case

• Princess Madawi hadn’t set foot in the property for over a year- demonstrated no intention or plans to return

• fleeting presence- absent, no intention to return

• An interest belonging to a person in ‘actual occupation’ will be protected only if and so far as it relates to land of which he is in actual occupation.

• evident from para 2 of Sch 3 of the 2002 Act, which in this respect differs significantly from that of section 70(1)(g) of the LRA 1925.

• The date on which a person must be in ‘actual occupation’ to rely on para 2 of Sch 3 to the 2002 Act is the date of disposition, ie completion

Mummery LJ in Link Lending:

‘The trend of the cases shows that the courts are reluctant to lay down, or even suggest, a single legal test for determining whether a person is in actual occupation.

• various ways people can occupy property- not possible to just have a single test

• not take away from sch 3 para 2- Occupation must still be obvious on reasonably careful inspection of the land

• trying to balance rights of third party- lend or purchaser, with rights of this person

OVERREACHING

City of London Building Society v Flegg [1988] AC 54

• Husband & Wife purchase ‘Bleak House’ in their joint legal names

• Greater part of purchase money provided by Wife’s elderly parents P1 and P2, who become beneficiaries under a trust.

• the legal title- the beneficiary interest is different- they are invisible

• Without knowledge or consent of both parents, Husband & Wife mortgage the property, spend the money and are declared bankrupt.

• Lender seeks possession because purchase moneys paid to two trustees.

• Carnage in the Court of Appeal, but back to orthodoxy in the HL.

• P1 and P2 no longer had an interest in the land, but only an interest in the money in the hands of the trustees (Husband and Wife)

• held: purchase money had been paid to the husband and wife- haven’t got an interest if they can’t keep their interest in the land

• having two trustees does reduce fraud

• they have an equitable interest in their trust in the land, and if in actual occupation they can claim an overriding interest- can’t balance into the purchaser money

• if it’s only been payed to one trustee- get to keep your interest in the land, and if in actual occupation- can claim an overriding interest to stay there