Chapter 4 land law PDF

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Chapter 4 land law...

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Land Law – Registered land  What title may be registered  (a) the freehold (ie, the fee simple absolute in possession);  (b) a lease that has more than seven years unexpired;  (c) leases of any length where the right to possession is discontinuous (eg, a time share);  (d) leases of any length granted to take effect in possession more than three months after the date of grant;  (e) a rentcharge that is either perpetual or for a term of which more than seven years are unexpired;  (f ) a profit à prendre in gross (eg, a fishing right) that is either perpetual or for a term of which more than seven years are unexpired;  (g) a franchise (eg, a right to hold a market) that is either perpetual or for a term of which more than seven years are unexpired.  First registration  Events triggering first registration  (a) a transfer of the freehold, whether for valuable consideration or by way of gift (eg, an assent or inter vivos gift), or in pursuance of a court order;  (b) a grant of a lease for more than seven years;  (c) a grant of a lease where the right to possession is discontinuous (eg, a time share) provided that the periods of possession when added together total more than seven years;  (d) a grant of a lease of any length granted to take effect in possession more than three months after the date of grant;  (e) an assignment of a lease which at the time of assignment has more than seven years unexpired;  (f ) a first legal mortgage of the freehold or of a lease which at the time of the mortgage has more than seven years unexpired;  (g) the appointment of a new trustee of unregistered land where the land vests in the new trustee by deed; and  (h) the partitioning of unregistered land held in trust amongst the beneficiaries of the trust.  Conveyancing implications  If the title is not registered within two months of any of the above events, the disposition will become void as regards the legal estate.  It is, however, possible to apply to the Registrar for an extension of this period.  If it is discovered that the land should have been registered after some earlier disposition but has not been, the seller must be required to register the title before the transaction.  Title Information Documents and land and charge certificates  Once land is registered, title to that land depends on what is entered on the register at Land Registry; thereafter the State guarantees the title.  Proof of ownership no longer depends on the deeds to the land.  It is the register itself which is the proof of ownership, and official copies can be obtained which are admissible as proof of ownership.  Devolution of registered land

 An entry is made on the Index Map to record the fact that the title is registered.  Classes of title  Absolute title  means the title is as near perfect as it can be.  This class of title can be given to either a freehold or a leasehold interest in the land.  On an application for first registration, the Registrar has a discretion under s 9(3) of the LRA 2002 to overlook minor defects in the title and to grant an absolute title, so curing the defect.  Possessory title  Possessory title will be granted where the applicant is in possession of the land and, for example, he has lost his title deeds or is claiming title through adverse possession under the Limitation Act 1980.  This class of title can be given to either a freehold or a leasehold interest in the land.  Qualified title  granted where the title submitted for registration shows a specific identified defect which the Registrar deems to be of such a nature that he cannot use his discretion to overlook the defect and grant an absolute title.  the State’s guarantee of the title does not apply to the specified defect.  This class of title can be given either to a freehold or to a leasehold interest in the land.  Good leasehold title  applies only to leasehold estates.  awarded where the Registrar is satisfied that the title to the leasehold interest is sound but, having no access to the title to the superior reversionary interest, he is not prepared to guarantee the lease against defects in the freehold title, or to guarantee that the freeholder had the right to grant the lease.  Such a title will therefore be given only where the title to the freehold reversion is unregistered, or where the freehold is registered with less than an absolute title and where the applicant for registration of the leasehold interest does not submit evidence of title to the freehold reversion when making his application.  A good leasehold title is regarded by lenders as being unsatisfactory, and for this reason is sometimes difficult to sell or mortgage.  Upgrading title  The Registrar may upgrade a title on his own initiative, or the proprietor may apply for upgrading as follows:  (a) A possessory title may be upgraded to an absolute title (or, in the case of leasehold land, to a good leasehold title) if either the Registrar is satisfied as to the title, or the land has been registered with possessory title for at least 12 years and the Registrar is satisfied that the proprietor is in possession.  (b) A qualified title may be upgraded to absolute (or, in the case of leasehold land, to a good leasehold title) if the Registrar is satisfied as to the title.  (c) A good leasehold title may be converted to an absolute title if the Registrar is satisfied as to reversionary freehold title and any intermediate leasehold title. This could occur after the registration of the reversion or of a superior lease.  Third-party rights in registered land  fall into one of the following three categories:

 (a) registered charges;  (b) unregistered interests which override the disposition; and  (c) interests which must be protected by an entry on the register.  Registered charges  Registration of the charge, which will be noted in the charges register of the land.  Unregistered interests which override a registered disposition – overriding interests  Unregistered interests which will override a first registration  These are set out in Sch 1 to the LRA 2002 and are designed to reflect the fact that whether a first registered proprietor is bound by an interest depends upon the rules relating to the purchase of unregistered land, and that first registration should reflect that existing position.  There are 15 such interests, the most common being:  (a) leases for seven years or less;  (b) an interest belonging to a person in actual occupation;  (c) a legal easement or profit; and  (d) a local land charge.  Unregistered interests which will override a registered disposition  These are set out in Sch 3 to the LRA 2002  There are 15 such interests, the most common being:  (a) legal leases for terms for seven years or less;  (b) an interest belonging to a person in actual occupation;  (c) certain legal easements and profits; and  (d) local land charges (see 17.5).  An interest belonging to a person in actual occupation  As from 13 October 2003, the rights of a person in actual occupation will override a disposition except for:  (a) an interest under a Settled Land Act settlement;  (b) an interest of a person of whom enquiry was made before the disposition and who failed to disclose the right when he could reasonably be expected to do so;  (c) an interest of a person whose occupation would not have been obvious on a reasonable careful inspection of the land at the time of the disposition and of which the person to whom the disposition was made did not have actual knowledge at the time of the disposition; and  (d) a lease granted to take effect in possession more than three months after the date of the grant and which had not taken effect in possession at the time of the disposition.  Mere occupation by itself is of no effect. Rather, what is required is for an individual to have a proprietary right over a property.  If that individual couples the interest with actual occupation of the property, it is the proprietary interest that will become overriding.  protecting a proprietary interest by virtue of occupation is a fall-back position and the interest should ideally be protected by substantive registration.

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overriding interest which arises under a trust of land can always be overreached on a disposition by all the trustees being at least two in number: see City of London Building Society v Flegg [1988] AC 54.  Rights under FLA 1996 (see 3.8.7) cannot override.  Easements and profits  an easement that is expressly granted or reserved on or after 13 October 2003 can never be overriding.  Neither can equitable easements.  Other legal easements and profits (ie, those created impliedly or by long user under the Prescription Act 1832) will be overriding except for an easement or profit which, at the time of the disposition:  (a) was not within the actual knowledge of the person to whom the disposition was made; and  (b) would not have been obvious on a reasonably careful inspection of the land; unless  (c) it had been exercised within the 12 months ending with the day of the disposition.  Any easement or profit that was an overriding interest immediately prior to 13 October 2003 will retain that status.  Interests which must be protected by an entry on the register  All interests affecting a registered estate (except registered charges and overriding interests) have to be protected by some entry on the register in order to bind a successor.  Is the interest a registered charge?  If not, does it fall within the list of overriding interests which will bind even though no entry appears on the register in respect of it?  If not, it should be protected by an entry on the register?  four methods of protecting these interests by entries on the register:  Cautions  Under the LRA 1925, a notice could be entered only with the consent of the registered proprietor.  Where the entry of a notice was not possible (eg, where the proprietor did not consent to the application – perhaps because he disputed the claim) a caution could be used.  This, however, provided only temporary protection for the owner of the interest claimed.  On an application to register a subsequent disposition, the claimant would be given a limited period of time to establish his rights.  Also, at any time the proprietor could require the Registrar to ‘warn off ’ the caution.  The claimant would be warned that unless he could justify his claim to an interest, the caution would be removed from the register.  If he could justify the claim, the interest would receive permanent protection (eg, by the entry of a notice).  Cautions appeared on the proprietorship register.

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Although no new cautions can be entered on or after 13 October 2003, existing ones will remain until ‘warned off ’ and so will still be encountered in practice. Inhibitions  used when a court injunction had been obtained to freeze the disposition of land, or on the insolvency of the proprietor to prevent any disposition which might be in breach of the insolvency laws.  Although no new inhibitions can be registered on and from 13 October 2003, existing registrations will remain. Notices  easements, restrictive covenants and estate contracts will be protected in this way.  As from 13 October 2003, there are two types of notice: agreed and unilateral.  Agreed notices will usually still need the consent of the registered proprietor.  As before, a spouse’s or civil partner’s home rights under the FLA 1996 can still be entered as an agreed notice without the proprietor’s consent.  Unilateral notices are registrable on and from 13 October 2003 and replace cautions.  they appear in the charges register.  Unilateral notices can be entered on the register without the consent of the proprietor.  When this happens, however, Land Registry notifies the registered proprietor. A procedure similar to the ‘warning off ’ procedure for pre-LRA 2002 cautions exists, but the terminology actually used in Land Registry Practice Guide 19 is the ‘cancellation’ of the notice.  The registered proprietor, or his solicitor, applies to Land Registry for cancellation of the notice.  Land Registry will then notify the beneficiary (the person who entered the unilateral notice) on the register that an application for cancellation has been made, and the beneficiary then has 15 business days to respond and attempt to prove the validity of the interest he is claiming.  It is then a matter for Land Registry to establish whether the unilateral notice protects a valid interest.  If a valid interest is indeed established, Land Registry would confirm this but the detail of the entry itself would not change (unless the beneficiary applied for more specific details to be set out).  If not (or if the beneficiary does not respond during the 15 business day period) the unilateral notice is ‘cancelled’.  Where the beneficiary asks for the unilateral notice to be ‘withdrawn’. Restriction on the proprietorship register  Where the registered proprietor’s powers of disposition are restricted in some way.  The restriction must be complied with, otherwise any disposition will not be registered.  Typically, such an entry is made where co-owners hold as beneficial tenants in common, where the land is held on trust or strict settlement, or where the

proprietor is a limited company or charity which is subject to the Charities Act 1993, s 36.  Where tenants in common are registered as proprietors the following restriction will be entered:  No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.  Caution against first registration  A caution against first registration can be lodged by a person who has an interest in land which is currently unregistered.  The caution warns any person who attempts to deal with the land that another person purports to have an interest in that land.  When a dealing with the affected land is lodged at Land Registry, the cautioner is ‘warned off ’ and given a limited period of time in which to establish his rights over the land, failing which the dealing will proceed and the cautioner will lose his interest.  Registration of a caution against first registration would ensure that the landowner was notified of any purported dealing with the land and would be given an opportunity to defend his rights if a neighbour deliberately or inadvertently attempted to register the land as his own.  They cannot be used in first registration if the applicant is the owner of the freehold or a lease for more than seven years in the land over which the right is being registered.  A caution against first registration is now used to protect someone who has the benefit of an easement or profit and wants to ensure that it will be noted against the servient land if that is registered.  Mistakes on the register  Where there is a mistake on the register, it may be possible to seek rectification of the register. Compensation (indemnity) is payable where an error in the register is not rectified, where the register is rectified but loss is still suffered, where loss is suffered as a result of rectification or for any other error in the registration system, such as an error in the result of an official search.  The conditions for claiming rectification and/or indemnity are stringent and are beyond the scope of this book....