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flk 2 - land law > 7. Unregistered Land > Flashcards

7. Unregistered Land Flashcards

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1
Q

When an owner of unregistered land comes to sell the land, what must they do?

A

prove their ownership

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2
Q

How does an owner of unregistered land prove their ownership?

A

producing documents to show that them and their predecessors in title had uninterrupted possession for 15 years.

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3
Q

What is the bundle of deeds and documents used by an owner of unregistered land to prove their ownership called?

A

an epitome of title

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4
Q

What does an epitome of title consist of?

A

a schedule of documents with photocopies of the documents attached.

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5
Q

What document does an epitome of title start with?

A

a good root of title

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6
Q

What are the four elements of a good root of title document?

A
  • show ownership of the whole of the legal and equitable interest in the land;
  • contains a recognisable description of the land;
  • does not cast any doubt on the title; and
  • is at least 15 years old.
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7
Q

What is a good root of title usually in the form of?

A

A conveyance by deed

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8
Q

How does a conveyance provide a good root of title?

A

on the assumption that the title has been investigated when the title was previously conveyed.

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9
Q

Do gifts of land provide a good root of title?

A

No, they do not provide security because the recipient of a gift does not investigate title.

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10
Q

Where an unregistered lease is being sold, what will the epitome of title provide and what is the exception?

A
  • the lease
  • documents showing uninterrupted possession for 15 years

exception: can be less than 15 years if the lease is for less than 15 years.

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11
Q

Where the epitome reveals a third party right created prior to the root of title, what is the buyer entitled to?

A

to call for a copy of the earlier document.

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12
Q

What are the disadvantages of unregistered land?

A
  • Risk of forged documents in the epitome of title.
  • Time-consuming and expensive process of investigating title.
  • Potential loss, theft, or destruction of the bundle of title deeds.
  • Difficulty in reading old handwritten documents.
  • Possibility of unwittingly purchasing land burdened by third-party rights if the epitome of title suggests otherwise.
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13
Q

How does a seller of unregistered land establish title?

A

A seller must prove uninterrupted possession for a period of 15 years.

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14
Q

What is the responsibility of a buyer when dealing with unregistered land?

A

The buyer must investigate title and inspect the land.

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15
Q

Do legal estates and rights bind a buyer in the case of unregistered land?

A

Yes, legal estates and rights (except puisne mortgages) bind the world, meaning a buyer is bound by them regardless of their knowledge.

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16
Q

How are equitable interests (excluding a beneficial interest under a trust) protected in unregistered land?

A

Equitable interests are protected by the registration of a Land Charge. Once registered, the Land Charge is deemed actual notice and binds a buyer.

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17
Q

What happens to an unregistered Land Charge in the context of a purchase?

A

An unregistered Land Charge is void against a purchaser of the legal estate for money or money’s worth.

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18
Q

How are beneficial interests under a trust protected in unregistered land?

A

Beneficial interests under a trust are protected by the doctrine of notice. A buyer takes free if they are a bona fide purchaser for value of the legal estate or interest with no notice.

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19
Q

Can beneficial interests under a trust be overreached?

A

Yes, beneficial interests under a trust can be overreached if the buyer pays their purchase money to a minimum of two trustees. The interests then lift from the land and attach to the proceeds of sale, and the buyer takes free of such interests.

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20
Q

What conditions must be met in unregistered land for an estate or interest to create a legal estate or interest?

A
  • It must be capable of being legal (appearing in s 1(1) or (2) LPA 1925).
  • It must have been created using the correct formalities.
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21
Q

What is a puisne mortgage in the context of unregistered land?

A
  • a legal mortgage or charge that is not protected by the deposit of deeds.
  • this occurs when it is a second mortgage, and the first mortgagee has already taken the deposit of deeds as part of its security.
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22
Q

What are puisne mortgages protected by?

A

A Land Charge

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23
Q

Why are some interests considered equitable in the context of unregistered land?

A

(a) The interest is not capable of being legal as it does not appear in s 1(1) or (2) LPA 1925.
OR
(b) The interest is capable of being legal but has not been created using the correct formalities.

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24
Q

How are equitable interests protected in unregistered land?

A

(a) Through a Land Charge.
OR
(b) By the doctrine of notice.

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25
Q

What can be protected by means of a Land Charge?

A

an interest that appears in s 2 of the LCA 1971

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26
Q

What are examples of interests protected by means of a Land Charge?

A
  • C(i) puisne mortgage
  • C(iv) an estate contract
  • D(ii) a restrictive covenant
  • D(iii) an equitable easement
  • F a home right
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27
Q

How is a Land Charge registered in relation to unregistered land?

A

It is not registered against the parcel of land but against the estate owner in the version of their name as it appears in the deeds.

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28
Q

What challenges can arise from registering a Land Charge in this manner?

A
  • Difficulties may arise for holders of third-party rights with no access to the deeds.
  • Issues can occur when estate owners use different versions of their name.
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29
Q

Who bears the responsibility to register the Land Charge in this scenario?

A

The onus to register lies with the person holding the equitable interest.

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30
Q

What is the effect of registering a Land Charge in unregistered land?

A

According to Section 198 LPA 1925, registration of a Land Charge at the Land Charges Department (not Land Registry) is deemed to constitute actual notice of the interest as of the date of registration.

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31
Q

How does registration of a Land Charge impact a buyer in unregistered land?

A

Any buyer will be bound by the interest, whether or not they are aware of it, due to the deemed actual notice from the date of registration.

32
Q

What is the effect of failing to register a Land Charge in unregistered land?

A

A Land Charge is void against a buyer for money or money’s worth of a legal estate unless the Land Charge is registered before completion of the purchase

33
Q

What was the court’s stance regarding the protection of a Land Charge through registration in unregistered land?

A

The court held that if a Land Charge was not protected by registration, the knowledge of the buyer is irrelevant.

34
Q

What is the recommended practice for a buyer of unregistered land when conducting a search of the Land Charges Register?

A

The buyer should search against all the names of estate owners revealed in the epitome of title, including any revealed who pre-date the root of title. This is crucial because any Land Charge registered will bind the buyer.

35
Q

What is the significance of Section 10 LCA 1972 in the context of searching the Land Charges Register?

A

Section 10 LCA 1972 stipulates that the search certificate from the Land Charges Register is conclusive in favor of the buyer, provided the buyer has conducted a thorough search as recommended.

36
Q

Despite following best practice, what potential issue might arise for a buyer of unregistered land in relation to Land Charges?

A

Even if best practice is followed, it is possible that the buyer is bound by a Land Charge not revealed by the epitome of title. In such cases, the buyer may be entitled to statutory compensation if they suffer a loss.

37
Q

What is the doctrine of notice in the context of unregistered land?

A

The doctrine of notice is an equitable principle codified in s 199(1) LPA 1925. It applies to:
(a) Equitable interests pre-dating 1925.
(b) Beneficial interests under a trust (express or implied) whenever created.

38
Q

How are equitable interests post-dating 1925 protected?

A

By Land Charges.

except for beneficial interests

39
Q

How are beneficial interests post-dating 1925 protected?

A

beneficial interests under a trust cannot be protected by registration of a Land Charge. The doctrine of notice is their only means of protection.

40
Q

In unregistered land, when is a buyer bound by equitable interests?

A

A buyer is bound by equitable interests unless they are ‘Equity’s Darling,’ which refers to a bona fide purchaser for value of a legal estate or interest without notice of the equitable interest.

41
Q

What does “bona fide” mean in the context of unregistered land transactions?

A

acting in good faith - with honesty and without fraudulent intent.

42
Q

What does “purchaser for value” mean in the context of unregistered land transactions?

A

A “purchaser for value” is someone who provides consideration for the purchase, and receiving land as a gift does not qualify. The consideration could be nominal, for example, £1.

43
Q

What must the buyer acquire in unregistered land transactions?

the doctrine of notice

A

The buyer must acquire either a legal estate or a legal interest, as defined in s 1(1) or (2) LPA 1925, meeting the formalities for the creation of a legal estate or interest (by deed)

44
Q

What consequence does the buyer of an equitable interest face regarding third-party rights?

the doctrine of notice

A

The buyer of an equitable interest cannot claim the benefit of the doctrine of notice and may be bound by the third-party right, depending on which equitable right was created first. This stems from the equitable maxim: where the equities are equal, the first in time will prevail.

45
Q

What is the buyer’s responsibility regarding notice of a third party’s equitable interest in unregistered land transactions?

A

The buyer must ascertain whether they have notice of the third party’s equitable interest.

46
Q

What happens if the buyer has notice of the third party’s equitable interest?

A

If the buyer has notice, they will be bound by the third party’s equitable interest.

47
Q

What is the onus on the buyer regarding notice?

A

The onus is on the buyer to prove that they have no form of notice of the third party’s equitable interest.

48
Q

In what forms can notice manifest?

A

Notice can come in three forms: actual, constructive, and imputed.

49
Q

What is actual notice?

A

The buyer must know of the existence of the equitable interest.

50
Q

What is constructive notice?

A

The buyer is obliged to inspect the land, investigate the seller’s title and make those enquiries which a reasonable person, with competent legal
advice, would make.

When inspecting the land, the buyer should be looking for indications of third-party rights.

51
Q

What is imputed notice?

A

Most buyers appoint agents to assist them in the process of purchasing land. If the buyer’s agent has
actual or constructive notice of an equitable interest, this will be imputed to the buyer. This is on the basis that the knowledge of the agent is assumed to be the knowledge of the principal (buyer).

52
Q

In unregistered land transactions, what advantage does a buyer have if they qualify as a “bona fide purchaser for value”?

A

If the buyer can demonstrate that they are a bona fide purchaser for value of the legal estate or interest without notice, often referred to as ‘Equity’s Darling,’ they will take free of pre-1925 equitable interests and beneficial interests under a trust.

53
Q

What is overreaching?

A

a mechanism allowing a buyer to take property free of the interests of any person with a beneficial interest under a trust.

54
Q

What condition must be met for overreaching to work?

A

On completion, the buyer must pay the purchase money (capital monies) to a minimum of two trustees (ss 2(1) and 27(2) LPA 1925). These trustees hold the legal estate.

55
Q

What happens to the interests of a person holding a beneficial interest under the trust through overreaching?

A

The interests of any person holding a beneficial interest under the trust lift from the property and shift to the proceeds of sale (the purchase money).

56
Q

What is the effect of overreaching on the beneficiary under a trust?

A

Once overreaching has occurred, any beneficiary under a trust no longer has an interest in the property. Their interest is in the proceeds of sale, and the buyer takes the property free of them.

57
Q

For what type of interests is overreaching effective?

A

Overreaching is only effective for beneficial interests under a trust.

58
Q

What is the 8 step approach to identify interest and determine if and how it has been protected in unregistered land?

A
  1. identify the interest
  2. is the interest capable of being legal, or is it equitable by nature?
  3. have the correct formalities been used?
  4. the interest is capable of being legal, but there is no deed
  5. legal equitable or statutory?
  6. how should the right be protected in unregistered land?
  7. has the interest been protected?
  8. reach a conclusion
59
Q

What are hints to identify the type of interest which may be involved in unregistered land?

Step 1 - identify the interest

A
  • Exclusive use for a fixed period = a lease.
  • The right to use another landowner’s land (but not creating exclusive possession) = an
    easement.
  • An obligation not to do something on the land = a restrictive covenant.
60
Q

When can equity intervene to recognise an interest?

Step 4 – the interest is capable of being legal, but there is no deed

A

if there is:
* a contract;
* complying with s 2 LPMPA 1989; and
* capable of being specifically performed (he who seeks equity must do so with clean
hands).

61
Q

What is the nature of an implied trust in unregistered land?

A

An implied trust is equitable by nature, as it does not appear in either s 1(1) or (2) LPA 1925 (s 1(3) LPA 1925).

62
Q

Are there any formalities required for the creation of an implied trust in unregistered land?

A

No, there are no formalities for the creation of an implied trust in unregistered land (s 53(2) LPA 1925).

63
Q

How is an implied trust protected in unregistered land?

A

by the doctrine of notice, as outlined in s 199 LPA 1925.

64
Q

What is the formalities for the creation of home rights in unregistered land?

A

there are none

65
Q

How are home rights characterized in terms of their nature and interest in land?

A

Home rights are statutory rights and do not create an interest in land, as per s 30 FLA 1996.

66
Q

How are home rights protected in unregistered land?

A

by the registration of a Class F Land Charge.

67
Q

What are the possible types of easements and how are they protected in unregistered land?

A
  1. Legal easement - binding against the whole world
  2. Equitable easement pre-1926 - doctrine of notice applies
  3. Equitable easement post-1926 - must be protected by registration of a D(iii) Land Charge.
68
Q

What are home rights?

A

A statutory right of occupation of the matrimonial home for a non-owning spouse or civil partner.

69
Q

When do home rights arise?

A

The right arises provided that:
1. the parties are legally married or in a civil partnership (and not divorced); and
2. the home is, has been or is intended to be the matrimonial home.

70
Q

Do home rights create an interest in land?

A

No

71
Q

How do home rights exist in relation to an equitable interest arising under a trust?

A

They exist independently of any equitable interest arising under a trust (whether express or implied).

72
Q

How are restrictive covenants protected in unregistered land?

A

Pre 1926 - subject to the doctrine of notice (binds all + equity’s darling)
Post 1926 - must be protected by a D(ii) Land Charge (deemed to constitute actual notice + if not, then void)

73
Q

How can a mortgage be protected in unregistered land?

A
  1. Legal mortgage - by deposit of deeds (binds all)
  2. Puisne mortgage - by a C(i) Land Charge (actual notice + if not, void unless registered before completion)
74
Q

What is the effect of creating a first mortgage over unregistered land?

A

triggers compulsory first registration of the title to the land.

75
Q

What are the possible types of leases and how are they protected in unregistered land?

A
  1. Legal lease - binds the world
  2. Pre-1926 equitable lease - doctrine of notice
  3. Post-1926 equitable lease - must be protected by registration of a C(iv) Land Charge

flk 2 - land law (8 decks)

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