Registered Land

Land Law

What is the property register?

Verbal description of the land and a reference to the title plan (shows edged in red the extent of the land)

Also indicates the type of estate (freehold or leasehold)

Rights for the benefit of the registered title are set out in the property register (e.g. an easement)

What is the proprietorship register?

States the class of title:

i) ABSOLUTE TITLE = best

ii) Possessory and qualified are not as good

Gives the name and address of the registered proprietor

Indicates any restrictions affecting the ability of the registered proprietor to deal with the legal estate in land.

What is the charges register?

Contains notices of any registered third-party rights which burden the registered title (e.g. covenants, easements and mortgages) - second entry will identify the proprietor of the charge.

There will also be a note of any registrable leases created out of the estate 

What is first registration?

The process by which the title deeds and documents in unregistered title are translated to a registered title.

Once registered, the title deeds and documents have no further purpose and, subsequently, the registered title is deduced by official copies extracted by Land Registry.

What is a qualifying estate? (for first registration)

i) unregistered freehold estate; and

ii) unregistered leasehold estate with more than seven years to run

What actions trigger first registration?

i) sale

ii) gift

iii) court order

iv) assent (PRs transfer land to a beneficiary under a will)

What is the procedure for buying an unregistered estate?

i) investigate the unregistered title

ii) inspect the land

iii) search the Land Charges Register (as land is currently unregistered)

iv) search for any cautions against first reg - no substantive effect, but alerts cautioner to an application for first reg

What is voluntary registration?

QE owners apply (at any time) and get a free discount (incentive to register)

When must a lease be registered?

When it is a legal lease over 7 YEARS - does not trigger registration of the freehold reversion.

Legal leases for seven years or less are protected as overriding interests.

How does a mortgage trigger first registration?

Creation of a first legal mortgage of a qualifying estate triggers first reg of the estate mortgaged

Therefore, a mortgage of freehold unregistered land or the mortgage of an unregistered lease with more than seven years to run would trigger the registration of the freehold or lease respectively.

What are the time limits for first reg?

The buyer must apply for first reg within two months of the trigger event (transfer, lease, gift or assent)

What happens if the time limit for first reg is not followed?

a) transfer = legal estate reverts to transferor - an equitable interest is held until reg is completed

b) grant of legal lease - fails to grant - an equitable interest is held until reg is completed

c) mortgage - fails to create a legal mortgage - an equitable mortgage exists until registration has been completed.

*Land Registry may extend the period for registration if there is good reason.

Once.a freehold/ 7 yr+ lease has been registered - what registrable dispositions will only have legal effect if they are too registered?

a) transfer of a registered estate 

b) grant of legal lease for more than seven years out of a registered estate 

c) grant of a legal charge - appear in charges reg (1st entry = ID charge/date of creation 2nd entry = proprietor of charge) 

d) an expressly granted legal easement/profit - 

If there are two mortgages, which one takes priority?

The charge that was REGISTERED FIRST and not the date of creation of the charges.

What is a IARE (Interest Affecting a Registered Estate)?

Third party interests which are not capable of substantive registration or an overriding interest

(Examples include estate contracts, interests under trust, equitable leases and restrictive covenants)

How are interests under a trust or land protected?

BY A RESTRICTION - appears in the proprietorship register - alerts a buyer that the registered proprietor has a limited right to deal with the legal estate in the land and that the buyer needs to implement overreaching in order to take free of the trust interest

Entry of a restriction will prevent the registration of a later registrable disposition for value which is not in accordance with the terms of the restriction.

A restriction may be entered onto the register without the consent of the registered proprietor.

What is a notice?

Applies to other interests (other than interests under a trust of land) - appears in charges register.

A notice may be entered onto the register without the consent of the registered proprietor

*Trust of land cannot be protected by notice 

** The registered proprietor can challenge a notice and claim damages for any loss suffered.

What is overreaching?

Overreaching is a mechanism by which a buyer can take property free of the interests of any person with a beneficial interest under a trust

In order for overreaching to work, on completion the buyer must pay the purchase money (capital monies) to a minimum of two trustees.

What happens once overreaching has taken place?

Any beneficiary under a trust no longer has an interest in the property - their interest is in the proceeds of sale - buyer takes property free of the trust interest

When can overreaching be used?

Overreaching is only effective for beneficial interests under a trust.

It cannot be used in respect of any other third party interest.

In the LRA 1925, what are the three overriding interests?

1. Legal easements

2. Leases not exceeding 21 years

3. Rights of persons in actual occupation

In accordance with LRA 2002, which interests does a buyer for valuable consideration take the registered land subject to?

1. Registered charges

2. Those registered as a notice in the register

3. Interests which override in Schedule 3

*The buyer will take the land free from any other interest.

What is paragraph 1 of Schedule 3 LRA 2002? (overriding interest)

Applies to fixed term and periodic leases (provided the period does not exceed 7 years)

Legal leases for more than seven years must be registered as they are registrable dispositions

Legal leases for seven years or less are automatically protected by paragraph 1, including parol leases - THEY ARE AUTOMATICALLY BINDING AS AN OVERRIDING INTEREST.

What is Paragraph 3 of Schedule 3 LRA 2002?

This protects legal easements and profits created by implication or prescription 

Implied by: i) necessity ii) common intention iii) Wheeldon v Burrows iv) s.62 LPA 1925

What are the three conditions that need to be satisfied for an easement to be an overriding interest under Paragraph 3?

i) the purchaser has actual knowledge of the easement or profit on the date of the transfer in their favour OR

ii) the existence of the right would have been apparent on a reasonably careful inspection of the land over which the easement or profit is exercisable; OR

iii) if the easement or profit has been exercised least once in the year prior to the land transfer.

What is contained in Paragraph 2 Schedule 3 LRA 2002?

An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which they are in actual occupation.

Paragraph 2 creates a safety net for unprotected IAREs but only if the person with the interest is in ‘actual occupation’

*Also need a proprietary interest in the land (NEED BOTH - PI + AO)

What are the three exceptions which cannot be overriding interests? (under sch.3 para 2) 

a) personal rights cannot be upgraded to overriding status as they do not create a property right in land (eg contractual licences)

b) home rights are excluded by s 31(10)(b) FLA 1996.

c) easements as the exercise of an easement is mere user of the land and cannot amount to actual occupation

What does occupation mean?

a) actual occupation should be interpreted as their meaning in plain English

b) actual suggests physical presence is required (not necessarily personal presence - could be a caretaker or company rep)

c) occupation is a question of fact - requires a degree of permanence and continuity

What happens if there is a temporary absence from a residential property?

If there is visible evidence of occupation (furniture and possessions) AND an intention to return - the person remains in actual occupation

Degree of permanence/intentions to stay/length of absence are all key in deciding occupation

What principles on occupation were developed by Abbey National Building Society v Cann?

a) what constitutes actual occupation of property depends on the nature and state of the property (commercial or residential) 

b) there must be some physical presence with some degree of permanence and continuity to be sufficient to put someone inspecting the land on notice

*presence must be sufficient for the nature of the property 

What are the exceptions to Sch.3 Para 2?

a) person holding the interest has failed to disclose the right when they could reasonably have been expected to do so

b) the person’s occupation was not obvious on a reasonably careful inspection unless the buyer has actual knowledge

*need an interest + obvious AO or no-obvious AO + actual knowledge

How are home rights protected in registered land?

By the registration of a notice in the charges register.