Overriding Interests Lecture Notes PDF

OVERRIDING INTERESTS  LECTURE OUTLINE 1. Background 2. Overriding Interests- Introduction 3. Overriding Interests in more detail- a. Short Leases b. Interests of persons in actual occupation c. legal easements and profits a prendre d. Adverse Possession  Overr...

OVERRIDING INTERESTS  LECTURE OUTLINE 1. Background 2. Overriding Interests- Introduction 3. Overriding Interests in more detail- a. Short Leases b. Interests of persons in actual occupation c. legal easements and profits a prendre d. Adverse Possession  Overriding interest Meaning An interest in registered land which does not require protection by entry on the register and binds the registered proprietor and all who acquire later interest in land. Compare with Mirror Principle and Curtain principle  LRA 2002- Distinguishes between First Registration (Sch 1) Subsequent registered dispositions(Sch 3) Section 71 require applicants to registration to reveal all the interests. Once revealed, it is ineffective as an overriding interests. Section 29 (3)  LRA 2002- Three categories- A. Short legal leases B. Property rights of persons in actual occupation C. Easements and profits A. Short legal leases  Overriding Interests, cont… SHORT LEASES Past LRA 1925- s. 70 (1) (k) Leases of over 21 years Present Leases of 7 years or less Future May reduce to 3 years; e-conveyancing City Permanent Building Society v Miller Equitable leases will not fall into this category. Legal Easements and Profits  Background - Easement An easement is a property interest over someone else’s land. It confers a right to use the land (positive) or prevent is being used in a specific manner (negative) ie a right of way or a right to light. 3c. Legal Easements and Profits Past: LRA 1925- ALL legal easements and Profits & certain equitable easements could be overriding Present: LRA 2002- Sch 3 Para 3 Only by prescription and impliedly created would fall into this category. LRA 2002: conditions to be fulfilled Must be legal - equitable interests are not overriding 1925 Act: Celsteel Ltd v Alton House Holdings Ltd Must arise otherwise than by express creation (LRA 2002- Sch 3 Para 3 -Only by prescription/ implied) [if it is expressly created, notice is put on the register, if not properly registered, then it becomes an equitable interest ]  The interest must satisfy certain conditions 3(1)-3(2) - Registration under Commons Act - existence known by the purchaser - obvious on careful and reasonable inspection - used in previous year B. Property rights of persons in actual occupation  Property Interests of persons in Actual Occupation Past -LRA 1925 – s. 70 (1) (g): The rights of every person in actual occupation of the land …..save where enquiry is made of such person & the rights are not disclosed. Present -LRA 2002- Sch 3 Para 2  Definition of actual occupation ‘It is the fact of occupation that matters and what is required is the physical presence on the land and not some entitlement in law’ Williams & Glyn’s Bank v Boland  “Occupation is a concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied”. National Building Society v Cann Determining whether a person is in actual occupation Is a question of fact. Williams & Glyn’s Bank v Boland - Mrs Boland was in actual occupation although she was not the registered proprietor. The bank were bound by her interest when Mr Boland mortgaged the property. A person does not cease to be in occupation merely because he is temporarily absent. Chhokar v Chhokar – beneficiary was temporarily absent in hospital but had an intention to return and belongings were still on the premises – this was sufficient for actual occupation.  Date of Occupation As regards to the date of occupation the relevant date when the Claimant has to be in actual occupation is the date of transfer and not the date of registration of the new proprietor Abbey National BS v Cann  The Occupation test? In Link Lending Ltd v Hussain the court held that there was no single test for determining whether there was a person in actual occupation. All factors could be taken into account, for example:- Degree of permenance or continuity of presence of the person claiming occupation The intention of the parties The reasons for the absence The length of absence Other personal circumstances  Conditions The interest must relate to the land of which the person is in actual occupation. If asked about the interest, the person to whom it belongs must not have failed to disclose it, when he could have reasonably expected to do so. The purchaser actually knew about the interest, even if the occupation was not obvious on reasonable inspection or purchaser actually did not know about the interest, but the occupation was obvious on reasonable inspection  Exclusions Right of a spouse to occupy the home is not capable of overriding and must be protected by means of an entry on the register. Family Law Act 1996 S.31(10)  3d. Adverse Possession LRA 1925- S. 70 (1) (f)- OI - Squatter could obtain title after 12 years adverse possession ( even if squatter no longer in possession at the date of disposition)  3d. Adverse Possession - LRA 2002- Did NOT replace old legislation. Squatter can only claim overriding interest if in actual occupation  LRA 2002 Interests binding on a Purchaser - Registered estates - Registered interests - Minor Interests ( protected by Notice or Restriction) - Overriding Interests Interests NOT binding on a purchaser -Equitable interests which are overreached -Unprotected interests ( which are not OI)