Registered Land

Question 1

What are the three parts of the land register?

Answer 1

1) property register;
2) proprietorship register; and
3) charges register.

Question 1

List the key aims of the Land Registration Act 2002?

Answer 1

1) To extend scope of first registration so more titles are registered; and
2) That the register is a more complete reflection of the title (aka the mirror principle).

T ensure the above the accuracy of the register is guaranteed by the state (the insurance principle) and anyone affected by errors may claim compensation (the indemnity principle).

Question 2

IN which register would a mortgage appear?

Answer 2

Charges register with two entires.

First will identify the registered charge and the date it was created.

The second entry identifies the proprietor of the charge.

Question 3

In which register would an easement appear?

Answer 3

The property register as the right of way benefits the property.

Question 4

In which register would you find a restrictive covenant?

Answer 4

The charges register as a restrictive covenant is a burden on the land.

Question 5

Explain the process of first registration.

Answer 5

Process where the deeds and documents in unregistered title are translated to a registered title.

Once registered, deeds and documents have no effect and title is deduced from official copies extracted from the LR.

Question 6

What is a qualifying estate for first registration purposes?

Answer 6

1) An unregistered freehold estate; or
2) An unregistered leasehold estate with more than 7 years to run.

Question 7

When will a qualifying estate need to be registered?

Answer 7

The transfer of a qualifying estate by sale, gift, court order or assent triggers first registration.

This means when one of the above events occurs, the estate must be registered.

Question 8

What is an asset of an estate?

Answer 8

Where PRs transfer land to a beneficiary under a will.

Question 9

Give an example of a situation where there may be a court order to transfer an estate.

Answer 9

On divorce where one party is ordered by the curt to transfer a property to the other.

Question 10

What is a search of the register of cautions?

Answer 10

A search the buyer of unregistered land will do.

Buyer will check register of cautions against first registration held by LR.

A caution against first registration can be registered by a person who claims an interest in unregistered land. This has no substantive effect but does alert the cautioned to any previous applications for first registration.

Question 11

Explain voluntary registration.

Answer 11

Qualifying estate owners are permitted to register their land at any time.

There is a fee discount for this (to encourage people to do so).

Question 12

Explain registration of a lease for a term of more than 7 years.

Answer 12

Leases with more than 7 years left to run must be registered.

When registered, the lease will begin its own title number.

Question 13

Does the registration of a legal lease of more than 7 years trigger complusory registration of the freehold title?

Answer 13

No.

Question 14

Is it possible to have an unregistered freehold title with a registered lease?

Answer 14

Yes.

Question 15

Explain the effect of registration of a first legal mortgage.

Answer 15

Creation of first legal mortgage pot a qualifying estate triggers first registration of the estate being mortgaged.

This means mortgage of a freehold unregistered land, to mortgage of an unregistered lease (with more than 7 years to run) will trigger registration of the freehold or leasehold.

Question 16

What is the time limit for first registration following the triggering event?

Answer 16

Buyer must apply for first registration within 2 moths of the triggering event, transfer/ grant of the lease, gift or assent.

Question 17

List the effects of failing to conduct first registration within the time limit.

Answer 17

1) In the case of transfer, the legal estate reverts back to the transferor. Equitable interest will however be hold until registration has been completed.

2) Where there is a grant of legal lease, the transaction fails to grant a legal lease. An equitable interest is held until registration has been completed.

3) In the case of the creation of a mortgage, transaction will fail to create a legal mortgage. An equitable mortgage will however exist until registration has been completed.

Question 18

Can the registration time limit be extended?

Answer 18

Yes. The land registry may agree to extend this if there is good reason to do so.

Question 19

Where title is already registered, further transactions will only have legal effect if they are also registered. Which transactions (where relating to the registered title) will only have effect once they too are registered?

Answer 19

1) Transfer of the registered estate itself;

2) Grant of legal lease for more than 7 years out of a registered estate. On registration, this will be given its own title number and title register. It will appear in charges register of landlords title within the schedule of leases (as it burdens the landlord’s title).

3) Grant of a legal charge. It’ll appear on charges register of borrower’s title. Register charges are shown by two entires. First identifies there is a charge and the second identifies proprietor of the charge (which will be the lender).

4) Expressly granted legal easement or profit. It must be registered against the title to which it relates. It’ll also appear in the charges register of the servient land.

Question 20

Explain the priority and registration of mortgages.

Answer 20

Mortgage over registered title is a registrable disposition.

It becomes a legal mortgage only when it is entered into the charges register of the title affected.

Where there is more than one charge registered against the title, order for priority depends on the order they were entered on the register.

Mortgage which a[[ears first will rank first on proceeds of sale.

Question 21

What is a minor interest (also known as interests affecting a registered estate)/

Answer 21

Third party interest in land which are not:

1) Capable of substantive registration (ie an estate in land);
2) Set out in s27 LRA 2002 as registrable dispositions; or
3) Overriding interests.

Question 22

List some minor third party interests.

Answer 22

• estate contracts;
• home rights;
• interests under a trust;
• equitable easements created after 2003;
• equitable leases;
• restrictive covenants.

Question 23

Explain the provision of s29(1) LRA 2002.

Answer 23

This confirms purchasers of registered title for valuable consideration takes the land free of any unprotected minor interests.

Question 24

How are minor interests protected?

Answer 24

Either by notice or a restriction.

Question 25

Which minor interests are protected by restriction?

Answer 25

Interests under trusts of land (either express or implied) are protected by restriction (s40 LRA 2002).

Restriction appears in proprietorship register, alerting the buyer that the registered proprietor has limited right to deal with legal estate in the land.

Entry of a restriction prevents registration of a later disposition which conflicts with the terms of the restriction which has been registered.

Question 25

How does a restriction need to be by a buyer in order to take the land free from the restriction?

Answer 25

The restriction must be overreached.

Question 26

Can a restriction be entered onto the register without the consent of the restored proprietor?

Answer 26

Yes.

Question 27

Explain which minor interests are protected by notices.

Answer 27

They apply to interests other than those under a trust of land.

Trusts of land therefore cannot be protected by registration of a notice, and must be protected by registering a restriction. on the proprietorship register.

Question 28

Can a notice be entered onto the register without the consent of the registered proprietor?

Answer 28

Yes.

However, the proprietor can challenge a notice and claim damage for any loss suffered.

Question 28

In which register are notices entered into?

Answer 28

Charges register.

Question 29

Explain the process of overreaching.

Answer 29

Mechanism so buyer can take property free from interests of any person with beneficial interest under a trust.

For it to work, on completion buyer must pay proceeds to a minimum of two trustees who hold the legal title to the property. Interests of the person with the beneficial interest under the trust then ‘lift’ to an interest in the proceeds of sale (monies).

Overreaching is only effective for beneficial interest under a trust. It cannot be used in respect of any other third party interest.

Question 30

What is an overriding interest?

Answer 30

An interest that do not appear on the register, but bind the owner of the legal estate and any buyer of it.

Question 30

Which interests are capable of being overriding interests?

Answer 30

1) Registered charges;
2) Interests registered as a notice in the register; and
3) Interests which override in schedule 3.

Question 30

Explain the provision of paragraph 3, Schedule 3 of the LRA 2002.

Answer 30

This protects legal easements and profits, ether implied or created by prescription.

It applies to easements implied or created by prescription if created after 12th October 2003.

This will therefore include easements implied by:
- necessity;
- common intention;
- Wheeldon v Burrows;
- s62 LPA 1925; and
- all other easements created by prescription.

The easement must also fulfil one of the criteria in the paragraph.

Question 31

Explain the provision of paragraph 1, Schedule 3 of the LRA 2002.

Answer 31

This provides that a leasehold estate in land granted for a term not exceeding 7 years from the date of the grant (including those under the parol lease exemption) are protected as overriding interests automatically.

Question 32

For an easement or profit to be protected as an overriding interest (under para 3, schedule 3, LRA 2002), what criteria must it fulfil?

Answer 32

They will take effect as overriding interests if one of the following conditions are met:

1) purchaser has actual knowledge of the easement or profit on date of transfer; or
2) existence of the right would have been apparent on a reaonsbly careful inspection of the land over which the easement is exercisable; or
3) easement or profit has been exercised at least once in the year prior to the land transfer.

Question 33

Explain the provision

Question 34

Explain the provision of paragraph 2, Schedule 3 of the LRA 2002.

Answer 34

This is the safety net provision to catch the remaining minor interests, but will only apply if that person is in actual occupation.

As such the person with the interest must:
1) have a proprietary interest; and
2) be in actual occupation of the property.

Question 35

List the interest which are not capable of being an overriding interest in para 2, schedule 3 LRA 2002?

Answer 35

The following do not fall within the remit of paragraph 2, schedule 3 LRA 2002

1) Personal rights can’t be upgraded to overriding status for the purposes of para 2 as they do not create property rights in land (eg contractual licences);

2) Home rights are excluded. A statutory right of occupation cannot be overriding under para 2 despite person being in actual occupation.

3) Easements are not capable of being an overriding interest for paragraph 2 as they do not amount to actual occupation.

Question 36

What does occupation mean for the purposes of para 2, schedule 3 LRA 2002?

Answer 36

No statutory defintion.

It is generally understood from common law that the words take their plain meaning.

Actual requires physical presence and occupation is merely a question of fact.

Defitnion of occupation can vary dependant on the nature and purpose of the specific property. It doesn’t necessarily involve personal presence of the person claiming the interest in land. However occupation does require some degree of permanence and continuity (ie not just mere fleeting presence).

Question 37

Define occupation

Question 38

Explain whether temporary absence affects whether someone is deemed to be in occupation (in relation to residential property).

Answer 38

If there is visible evidence of occupation (eg furniture and possession) and the person has an intention not return to the property, the person will still be deemed to be in actual occupation.

Question 38

List the factors the court will consider when determining whether someone is in actual occupation (built on Link Lending v Bustard).

Answer 38

1) Degree of permanence and continuity of presence.

2) Intention ad wishes of that person.

3) Length of absence and reason for it.

4) Nature of the property.

5) Personal circumstances of the person in question.

Question 39

Is voluntary residence elsewhere with a persistent intention to return home sufficient to claim actual occupation?

Answer 39

Yes.

Question 40

Explain what constitutes actual occupation in the context of commercial property.

Answer 40

Some degree of physical presence at certain times with some degree of permanence and continuity is sufficient to put someone inspecting the commercial property on notice that there is someone in actual occupation.

Question 41

Explain the factors which made the court decide there was actual occupation of the commercial property in Malory Enterprises v Cheshire Homes [2002].

Answer 41

Claimants were found to be in occupation as they had:
- erected fences;
- put up no trespassing signs;
- replaced wooden fencing with high security steel fencing;
- replaced a broken lock.

Question 42

Explain what made the court decide there was actual occupation of the commercial property in Kling v Keston Properties Ltd.

Answer 42

A car was regularly parked in a garage. This was held to be normal use of the garage and therefore amounted to actual occupation.

Question 43

Explain the exceptions Ito para 2, s schedule 3 LRA 2002.

Answer 43

Overriding status will be most if:

1) person holding shoe interest has failed to disclose the right upon inquiry form the buyer when they would reasonably have been expected to do so.

2) person’s occupation was not obvious on reasonably careful inspection of the property (unless buyer had actual knowledge).

Question 44

In summary, what does someone need to prove in order to claim their overriding interest?

Answer 44

They either need to prove:

1) A proprietary interest + Obvious Actual Occupation; or

2) Proprietary Interest + Non-Obvious Occupation + Actual Knowledge (on the part of the buyer).