This guide will be sufficient to get a high 2.1/1 st in finals if you do only problem
questions.
There are some minor summaries of academics at the end for each topic, but the
document is mostly rules/case summaries in a guide form to be used step-by-step.
The main headings from the contents page are in neon pink.
CONTENTS:
1. Registration
2. Leases
3. Adverse possession
4. TOLATA
5. Estoppel + Licences
6. Co-ownership
7. Covenants
8. Easements
REGISTRATION
Registration of estates and interests in land are now governed by the provisions of the Land
Registration Act 2002 (LRA).
s58(1) LRA holds that the legal estate is vested in him as a result of registration.
The exchange of contracts in itself does not provide for the transfer of proprietary rights. As
Scott v Southern Pacific Mortgages [2014] made clear, a party has no power to grant
proprietary rights following the exchange of contract; this only arises after completion. Once
the conveyance is completed (i.e. the deed is executed), one is entitled to be registered as
proprietor. As Baker v Craggs [2018] makes clear, a purchaser-vendor constructive trust
arises upon completion of a purchase. s.24(b) of the LRA makes clear that someone in this
position is entitled to exercise powers of an owner as they are entitled to be registered, and
so under s23(1)(a) they are able to make any disposition of any kind permitted by the law.
Until the interest is registered, the right will operate in equity and will not have effect at law
(s27(1)).
❏ s52(1) LPA holds that any conveyance of land or interest in land is void unless it is
made by deed. Under s1 of the LPMPA 1989, a deed is one that makes it clear that it
is intended as a deed (s1(2)(a)) and it is signed in the presence of a witness (s1(3)(a))
and is delivered as a deed (s1(3)(b)).
The role of notice in land registration
The system of land registration has no place for the doctrine of notice, but notice plays a role
in equity. In Midland Bank v Green [1981] a father granted his son the option to purchase
the farm and the option was not registered under the Land Charges Act 1925. The father
then sought to avoid this option by selling the farm to his wife and the House of Lords held
,that there was no requirement under s.13 of the Act that the purchaser acted in good faith.
It was not fraud to rely on rights conferred by statute even if they were exercised in bad
faith; the right was not registered, so it was not binding on the mother’s estate and it is
irrelevant that the mother knew of his right.
In Lyus v Prowsa [1982], the Lyus’ agreed to purchase plot 29 on a new estate on registered
land and the developer became insolvent. The bank who had a legal charge over the estate
took possession and sold it, including plot 29, to Prowsa with a clause stating they took
subject to and with benefit of contract affecting plot 29. In breach of this, Prowsa sold the
plot to D2 and Dillon J held that Prowsa took the land subject to Lyus’ contract. By expressly
agreeing to take subject to the contract, it would be unconscionable for them to deny its
existence. A constructive trust was imposed to allow the unprotected contract to bind D in
equity.
However, this may be treated as an exceptional case and courts have sought to
restrict it to its facts. In Chaudhary v Yavuz [2011], Chaudhary relied on a staircase on land of
his neighbour as means of access to upper floors of Chaudhary’s land but this was not
entered on the register as a notice. When his neighbour sold their title to Yavuz, they
invoked s.29(1) to show that they were able to remove the connection between the
staircase and Chaudhary’s property because it was not a protected interest. The property
was sold ‘subject to the incumbrances on the property’ but there were no entries in the
register. Lloyd LJ held that there was nothing in the contract which drew specific attention to
the right like in Lyus and the contract doesn’t lead to the conclusion that the purchaser
undertook a new obligation.
First registration
S4 lays out the circumstances in which land must be first registered, and ss 4(1) and 4(2)
make it clear that where there is a transfer of a legal estate (freehold or leasehold for a term
of more than 7 years) for valuable or other consideration, it must be registered.
S6(1) places a duty on the responsible estateholder to apply for registration within a time
period of 2 months (s6(4)).
s7(1) holds that if the requirement of registration is not met, the transfer becomes void and
under s7(2)(a), the title to the legal estate reverts back to the transferor but they hold it on
bare trust for the transferee.
s9(1) lists the classes of title that one can register as.
- Under s9(1)(a) one can be registered as proprietor with absolute title, which is where
the title to the estate is certain enough that a competent professional adviser would
advise the willing buyer to accept (s9(2)).
- Under s9(1)(b) one can be registered with qualified title if the registrar’s opinion is
that the person’s title to the estate has been established for a limited period or is
subject to reservations (s9(3)).
- Under s9(1)(c) one can be registered with possessory title if the registrar is of the
opinion that they have actual possession of land and they cannot be registered under
the other 2 classes (s9(4)).
,Registrable dispositions
Under s27(1) of the Act, if a disposition of a registered estate is required to be completed by
registration it does not operate at law until it is registered.
- s27(2)(a) holds that a transfer of an estate must be registered.
- s27(2)(b) holds that a lease for a term of over 7 years must be registered.
- s27(2)(d) holds that an express grant or reservation of an easement must be
registered.
s28(1) lays down the basic rule that a priority of an interest relating to a registered estate is
not affected by disposition, but s29(1) recognises a wide exception holding that a disposition
of registered estate made for valuable consideration done by registration has the effect of
postponing all other interests.
Registration then allows that interest to take priority over interests which are not
protected under s29(2)(a), such as an interest protected under sch 3.
- An interest is protected if it is a registered charge or subject of a notice in the register
(s29(2)(a)(i)).
- A notice is an entry highlighting there is an interest and it protects the priority
of the interest (s32(3)).
- An interest cannot be entered as notice if it is a trust of land (s33(a)(i)) or a
lease less than 3 years which doesn’t need to be registered (s33(b)).
- An notice can be entered under mutual agreement (s34(3)(a)) where the
applicant is the registered proprietor who consents (s34(3)(b)) or where the
registrar is satisfied of the validity of the applicant’s claim (s34(3)(c)).
- A notice can be entered unilaterally by the beneficiary under s35 and the
register proprietor can apply to have the notice cancelled under s36.
s28(1) lays down the basic rule that a priority of an interest relating to a registered estate is
not affected by disposition, but s30(1) recognises a wide exception holding that a disposition
of registered charge made for valuable consideration done by registration has the effect of
postponing all other interests.
Registration then allows that interest to take priority over interests which are not
protected under s30(2)(a), such as an interest protected under sch 3.
Restriction
s40(1) holds that a restriction is an entry which the registered estate may be subject to and
it can prohibit making an entry subject to various conditions.
s41(2) allows the registrar to disapply the restriction or modify the restriction.
Schedule 3
Under schedule 3, paragraph 1 any leasehold estate in land that does not exceed a term of 7
years operates as an overriding interest in land. [Any lease over 3 years must be in a deed to
have any protection under this. Any under 3 years may escape that requirement by virtue of
s54 LPA]
, ❏ The language of the statute suggests that a legal leasehold is required, clear from
City PBS v Miller [1952] where it was held that only a legal lease, which is granted in
a deed (s52(1) LPA), would operate as an overriding interest. This has followed into
the 2002 Act since the lease has to be one that is granted, suggesting that an
equitable lease under Walsh v Lonsdale (1882) is not enough.
Under schedule 3, paragraph 2 a person who is in actual occupation has an overriding
interest. To qualify they must have an interest relating to the land. Schedule 4, paragraph 2
(1) makes it clear that the court can then make an order to alter the register in order to bring
it up to date, which would reflect the overriding interest as already being binding on the
registered proprietor, with no indemnity granted under sch 8. Can they be expected to
disclose? Was it reasonably obvious? Alter register! See below
● Lord Wilberforce in National Provincial Bank v Ainsworth [1965] made it clear that a
personal right (such a right to remain enforceable against the husband) is not
capable of amounting to an overriding interest. It must be a proprietary right.
● In Williams and Glyn's Bank v Boland [1981], Mr Boland was the sole registered
proprietor of the home in which he lived with his wife. Mrs Boland had a beneficial
interest as a result of her financial contributions to the purchase price and she
argued that this interest alongside her occupation would be enough to constitute an
overriding interest. Lord Wilberforce made it clear that the beneficial interest of a
spouse under a trust for sale is capable of being recognised as an overriding interest,
and thus equitable interests in land are interests that are protected under schedule
3, paragraph 2. She had actual occupation (which means the ordinary definition of
physical presence) and her equitable interest by fact of occupation was made into an
overriding interest.
● In Ali v Dinc [2020], Worthington J held it is necessary to consider what the
proprietary right entails and thus for example a beneficiary under a trust
which expressly allows for the sale of the property and the trustee acts
according to those powers, there are no proprietary claims to priority.
● In Mortgage Express v Lambert [2016] Lewison LJ considered that the sale of the
lease might have been procured by undue influence and the right to set aside the
transaction was equity. Following s116, a mere equity [claim to discretionary
equitable relief in relation to property] is an interest capable of binding successors in
title and could be an overriding interest.
● In Malory v Cheshire Homes [2002], Arden LJ held that whilst the fraudster gained
the legal freehold by registration, Malory retained the equitable interest in the land.
This equitable interest coupled with the actual occupation meant they had an
overriding interest. The actual occupation was evidenced by Malory’s maintenance of
fences, boarding up windows and using the land for storage. Lewison LJ’s judgment in
Rashid v Nasrullah [2018] suggests that this principle may still exist so where a
fraudster takes land without the owner’s consent, he may hold it on constructive
