Property Law Second Term - OVERREACHING Flashcards Preview

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Flashcards in Property Law Second Term - OVERREACHING Deck (48):
1

Coleman v Bryant

Court unlikely to allow Restriction in register against sale by one legal owner

1

Abbey National v Cann

Can infer consent when equitable owner knew mortgage was necessary to purchase

1

What argument does McFarlane prefer for how beneficial interests can be overreached (doctrinally)?

Inherent in trustees' powers of disposition

1

Where can a purchaser look for protection in overreaching under unregistered land?

S.16 TOLATA

2

Who called CLBS v Flegg a 'hard case'?

Dixon

2

If the overreaching action is a mortgage, what happens to the beneficial interests?

Attach to the equity of redemption

3

What section of TOLATA requires trustees to consult equitable owners if practicable?

11

5

How are equitable interests binding in unregistered land

Doctrine of notice

6

What was the alternative reform suggestion of Harpum to overreaching?

Restrict powers of trustees to mortgages to secure purchase, improvement or repair of the land

7

Bleak House

CLBS v Flegg

8

What section of what statute states that equitable interests in unregistered land cannot be land charges?

S.2(4) LCA 1972

8

Birmingham Midshires v Sabherwal

Legal title in sons - overreached PE

8

McFarlane on Sabherwal?

Difficulty in extending overreaching to non-trust situations as it bases trustees' powers of disposition - no basis on which an equitable interest not under a trust can be overreached

9

What are the two positives of Sood?

Ensures free alienability of co-owned land and lenders have agreed to such mortgages

9

Law Com Report No.188

Defunct suggestions for reform of overreaching

10

Who suggested an equitable owner could enter a Restriction under court order s.14 TOLATA to prevent sale by one legal owner?

Dixon

11

CLBS v Flegg

Bleak House - remortgage

13

What section of what statute gives rights capable of being overreached?

S.2 LPA

14

Can infer consent when equitable owner knew mortgage was necessary to purchase

Abbey National v Cann

15

When does overreaching occur?

Within powers of trustees (s.6 TOLATA), right capable of being overreached (s.2 LPA) and statutory conditions fulfilled (s.2 LPA)

16

What does McFarlane state about CLBS v Flegg after s.4/5 TOLATA?

Flegg now have a beneficial interest in land, in which they have a right of occupation.

18

HSBC Bank v Dyche

No overreaching if used to perpetrate a fraud

19

Who argued, prescient to Sood, that capital money need not be paid for overreaching to occur?

Harpum

21

What three other arguments did McFarlane reject for doctrinal reasoning for overreaching and powers of trustees to do so/

S.27(1) LPA, conversion and inherent for unregistered land

22

What is the negative of Sood?

Overreaching usually justified as interest of beneficiary is transferred to capital sum

23

What did Ferris and Battersby argue?

S.6(1) TOLATA general power is further limited, reversing Flegg

24

Where can a purchaser look for protection in overreaching regardless of land type?

S.2 and s.27 LPA

25

What happened in CLBS v Flegg?

Remortgage of the house meant the interests of the beneficiaries were overreached

25

What does s.14 TOLATA denote?

Purchaser/mortgagee without priority can apply for sale to realise security against wishes of beneficiaries whose interests they have not overreached

27

What defunct Law Com Report suggested three alternatives to reform overreaching?

Law Com Report No.188

28

Kingsnorth Trust v Tizard

If they live in property, purchaser/mortgagee deemed to have constructive notice of interest and thus bound

30

What if the legal owners abscond with the money from the conveyance?

Normal remedies for breach of trust - personal action or trace claim to assets obtained by trust money

31

State Bank of India v Sood

If money is not payable as part of mortgage for s.2 then need not be paid at all

32

No overreaching if used to perpetrate a fraud

HSBC Bank v Dyche

33

What do trustees HAVE to do under s.6 TOLATA?

MUST consult the trustees, and must use powers consistent with the trust

34

Who argues that s.6 TOLATA is not further limited by other parts of the statute, and thus ultra vires transactions are more likely, reversing Flegg?

Ferris and Battersby

35

In what case did the CoA think 1997 Act did not affect overreaching?

Sabherwal

37

Who agreed with McFarlane on the doctrinal reason for overreaching?

Harpum

38

Where can a purchaser look for protection in overreaching for registered land?

S.23 and s.26

41

What did Dixon say of CLBS v Flegg?

'Hard case' and law should not change to meet its exceptional nature

41

What did Harpum suggest about Sabherwal?

Not limited to situations where trusts and estoppel coincide

42

What case shows that doctrine of notice for unregistered land = living in property?

Kingsnorth Trust v Tizard

43

What did Gravells suggest about HSBC v Dyche?

Unknowingly reversed Flegg under TOLATA by saying breach of trust (i.e. transaction unauthorised) means it doesn't overreach

44

Why does McFarlane argue cases like Sood do not need two trustees?

S.27 only applies when there is money

45

What were the three suggestions of Law Com Report no 188?

One trustee as a solicitor/licensed conveyor, no possible if equitable owner registers interest (need amendment of s.33 LRA) OR not possible without consent of all owners of full age

46

Skipton BS v Clayton

Knowledge of sale/mortgage is insufficient for consent to priority of mortgage

47

Knowledge of sale/mortgage is insufficient for consent to priority of mortgage

Skipton BS v Clayton

48

Why did the court decide PE could be overreached in Sabherwal?

Because would create a lacuna in overreaching to enable C to claim PE instead of CT and avoid it