Enforceability of 3rd party rights - Registered land

Question 1

Interests and estates in registered land that have to be registered to be legal (s27(2) LRA 2002)

Answer 1

Automatically binding on a new owner

Question 2

Interests that do no need to be registered as part of creation (i.e. equitable easements, restrictive covenants and equitable leases)

Answer 2

• s28 LRA - binding on a disponee of a registered estate

- s29 LRA - so long as notice entered on the charges register of the burdened property (unless overriding)

Question 3

Entering a notice on the charges register

Answer 3

• s32 LRA; unless interest is excluded in s33

Notice will be agreed (s34) or unilateral (s35)

Question 4

Failure to enter notice on charges register for equitable easement, equitable lease or restrictive covenant

Answer 4

Interest not binding on a purchaser for valuable consideration -s29(1) LRA 2002 (except overriding interests)

Question 5

Even if buyer aware of the interest, this will not make it enforceable if notice has not been entered on charges register

Answer 5

De Luisgnan v Johnson

Question 6

Beneficial interest under a trust

Answer 6

• restriction on proprietorship register under the name of the proprietor - s40 LRA
• overreaching - purchase monies must be paid to 2 or more trustees - s2 and sLPRA 1925

Question 7

Mortgage only paid to one trustee so no overreaching

Answer 7

Willims & Glyn’s Bank v Boland - bank tood subject to wife’s beneficial interest as an overriding interest

Question 8

Mortgage paid to two trustees - overreached

Answer 8

City of London Building Society v Flegg

Question 9

Overriding Interests - Sch 3 LRA

Answer 9

Para 1 - Legal leases not exceeding 7 years
Para 2 - Any interest held by a person in actual occupation
Para 3 - Legal easements acquired by implied grant/reservation/by prescription

Question 10

When will a legal easement be overriding

Answer 10

• existence known to buyer of burdened land OR
• obvious on reasonable inspection of the land OR
• exercised within one year prior to disposition

Question 11

When will actual occupation not be overriding

Answer 11

• not disclosed by interest-holder on reasonable inquiry OR
• occupation not obvious on reasonable inspection of land and purchaser has no actual knowledge of the interest

Only binding to the extend the land is occupied

Question 12

Lodger held on resulting trust, she was in actual occupation so overriding

Answer 12

Hodgson v Marks

Question 13

Tenant’s option to purchase was overriding

Answer 13

Webb v Pollmount

Question 14

No safety net of actual occupation in unregistered land

Answer 14

Lloyds Bank v Carrick

Question 15

Owner did not occupy via step-daughter

Answer 15

Strand Securities v Caswell

Question 16

Obiter suggestion that caretaker could occupy for employer

Answer 16

Abbey National Building Society v Cann

Question 17

Weekly visits of cleaner and twice weekly visits of driver did not amount to occupation by proxy

Belongings do not necessarily amount to occupation.

Had not visited property in over a year

Answer 17

Stockholm Finance v Garden Holdings

Question 18

Must be in actual occupation at the time of the grant (and possibly also registration)

Answer 18

Thompson v Foy

Question 19

Temporary absence - psychiatric hospital, returned weekly to collect post and belongings remained at property = actual occupation

Answer 19

Link Lending v Bustard - sufficient continuity and permanence of occupation, involuntary residence elsewhere and persistent intention to return

Question 20

Temporary absence - giving birth in hospital = actual occupation

Answer 20

Chhokar v Chhokar

Question 21

Right of way can never constitute actual occupation

Answer 21

Holaw v Stockton

Question 22

Obiter - more continuous easements (e.g. storage) may amount to occupation

Answer 22

Chaudhary v Yavuz

Question 23

Charge under Family Law Act 1996

Answer 23

gives spouse with no proprietary interest, the right to occupy the home - s30 FLA

Right lasts until termination of marriage - s31 FLA

Does not create interest in land, only statutory right of occupation - cannot be an overriding interest due to actual occupation

Notice must be entered on charges register under s32 LRA to be protected