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Summary Land Law Notes
- Vak
- Instelling
Unregistered land notes
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UNREGISTERED LANDMD: 99-129
Unregistered Title – Third Party Rights (Legal/Equitable Interests) – Rights which must be registered
as land charges – Consequences of Non-Registration.
– Introduction:
There are two systems in the UK for land law which both share the same type of property rights (proprietary rights)
such as leaseholds, freeholds, easements and covenants and they share the concept of overreaching.
Registration is a new system (even though its 100 years old) – was brought into place to make it straightforward as
possible for a purchaser of land to discover, before buying the property what rights he will take subject to and in the
case of registration of title, to assure him that the seller actually owns the land he is purporting to transfer. The LAND
REGISTRATION ACT 2002 replaced and modified LRA 1925 which provided a system of registration of land (land
where the title is still evidenced by deeds) and NOT title of land (system of land ownership whereby the actual title to
the land is registered and where recourse to the deeds is no longer necessary or impossible). = more than one title
applicable to the same piece of land.
Unregistered law – old system – 14% of the land in the UK is unregistered. Prove “root of title” in land in a simple way
– sold land you would have to prove that you were the owner – prove title by proving title of the previous owner. I.e.
you are proving that you have a better right to possess the land than anyone else – to do this you must show a
convincing documentary title to the property. But this doesn’t conclusively prove that title exists. Unregistered land
means that title of land cannot be found in the register of titles governed by the LRA 2002. Unregistered land is land for
which the title must be proved from the conveyancing history of the land as evidence by the documents of titles (deeds
and other related documents such as those creating easements). Unregistered land has its own system of independent
partial registration,
Title deed – formal record of ownership which is tied to the identity of a particular person at a particular time.
Searching for a good root of title. Eventually they began to set max year to find a good root of title. First deadline was
50 years, then 30 years, now its 15 years.
Problem of land itself – often subdivided – all people can’t use the same deed so therefore you wouldn’t have a deed as
there’s only one deed. Lawyers then started to make copies of deeds to give to the sublets. When you copy stuff you can
make mistakes and you can have a fake copy – fraud/forgery.
Williams & Glynn’s Bank v Boland (1981) – process is said to be ‘the wearisome and intricate task of examining title’.
Why did unregistered land exist for hundreds of years when there are so many problems with it?
– Unregistered Land:
This means that title of land has not been registered – when buying and selling land, you would have to rely on the
examination of the title deed to the property and make other enquiries rather than having the register to rely on. –
Some rights are registered as land charges but as the actual title to the land is not registered they are registered
against the name of the estate owner, i.e. the owner of the legal estate freehold or leasehold.
If land charge is not registered – not be binding on a purchaser, even if he/she does have notice.
Aim was to facilitate the registration of title to land whereby a persons’ ownership of the land would be entered upon
an official register and the third party rights affecting that land would also be entered on to that register.
Registration of land charges – prior to 1925 – whether the purchaser would be bound by equitable interests turned on
whether he was able to establish he was a bona fide purchaser of a legal estate without notice which meant that he
had to establish that he made all the enquires which the law considered ought reasonably to have been made when
purchasing the land.
o They had to fix problems in unregistered land –problem of notice and root of title.
o They had to introduce framework for new system of registered land
After 1925: Lord Birkenhead (The Times, 1920) (He introduced the system): ‘Its general principle is to assimilate the
law of real and personal estate and to free the purchaser from the obligation to enquire into the title of him from
whom he purchases, and more than he would have to do if he were buying a share or a parcel of stock.’
Strategies of the 1925 Act:
The 1925 act reduced the number of legal estate which could exist to two: fee simple absolute in possession (only
legal freehold estate which can exist) and terms of years absolute. All other estates can only exist in equity. Also, the
number of legal interests which would bind a purchaser of land would be bound by land, irrespective of notice was
also reduced.
Also, the reduction of the number of legal estates and interests in land led to a corresponding increase in the number
of equitable interests. 1925 – the question of whether or not a purchaser would be bound by equitable interests turned
on whether he was able to establish that he was a bona fide purchaser of a legal estate without notice – which
required him to establish that he made all enquires which the law considered ought reasonably to have been made
when purchasing land. This assists a holder of an equitable interest to be able to securely protect their right where
such rights were allowed to be made as land charges. Aim – enabling the purchaser to have a simple means of
making an official search of the land charges register = discovering what third party rights the property he was
buying would be subject.
, – Third Party Rights in Unregistered Land
Person who obtains title to unregistered land over which an adverse third party interest already exist is bond by
that interest – does the third party interest survive a transfer of the land? This may depend on both the nature of the
third party interest and or the status of the new owner. Would need to know whether the third party right is
equitable/legal.
– The Enforceability of Legal and Equitable Rights
There are a small group of legal estates and interests (set out in s.1 LPA 1925) and all other interests in land are
equitable. Legal estates bind the world, while equitable interests can be defeated in various ways. This is the position
if the title is unregistered.
General rule: legal rights bind the world = old pre 1926 rule. This means that if a person buys, or comes to possess a
piece of unregistered land he will take that land subject to virtually every legal interest over it. The “state of mind” of
any transferee of the land, the nature of his title or indeed any other matter is not relevant. This rule can be seen to be
unfair that legal rights should bind the land automatically is those purchasers who investigates their purchase
properly. The rule is that legal rights bind a transferee whether or not he knew about them and whether or not they
were in fact obvious from an inspection of the title deeds or lands – most cases however the purchaser will be aware.
Wyld v Silver (1963) – property developer who had brought a piece of land and wanted planning permission to create
5 house on the land. Land was suited in a village and it transpired by an act of parliament -1719 the villages had a
right to hold an annual fair on the land. This was discovered later on in the process after Wyld purchased the land.
Right had not been used since 1865. The court granted an injunction to restrain the property developed from building
the houses otherwise they wouldn’t have been able to hold the fair. The purchaser couldn’t/didn’t have known about
that right didn’t matter –irrelevant. Also the fact the builder acquired planning permission, this alone is not sufficient.
Exception to this rule = provided by puisne mortgages and this is a legal mortgage over land over which the
documents of title of the mortgaged land have not been deposited with the mortgagee (lender), usually because an
earlier legal mortgage already exists and this earlier lender has the documents – doesn’t have the ability to prevent
dealings with the land so the puisne mortgagee is not protected against further dealings with the burdened land.
Equitable rights: bind the world except for…a bona fide purchaser of a legal estates (freehold, leasehold) for value
without notice (not automatically binding).
Successors in title – land has been conveyed to a bona ide purchaser who is not bound by prior equitable interest –
can a subsequent purchaser who doesn’t have notice be bound; whether the equitable interest will be revived –
Wilkes v Spooner – courts held it wasn’t. one the land has been conveyed to a bona fide purchaser – any equitable
interest are overridden = removed from the land. Exception = land is conveyed to a person who had previously
owned the land and who was at that time bound by the interest in question.
The key: without notice (buy land without notice). Does the purchaser know about the equitable interest? No notice –
not bound.
What is a purchaser? Person who acquires property through the act of the parties and not be the operation of law.
Person who acquires property under a will = purchaser but someone who succeeds to property in intestacy is not.
Normal rule: two competing equitable interests, the first one prevails. 3 exceptions = better right to legal estate (Assaf v
Fuwa – trustee didn’t have notice of the equitable interest, the beneficiary under the trust had a right to have the legal estate
conveyed to him); later acquisition of the legal estate; mere equities (mistake, fraud).
LEGAL INTERESTS
Legal interests are automatically effective against the land over which they exist, even if they exist, even if not granted
by the current landowner. They will bind automatically any person coming into ownership or occupation of the land, be
they a purchaser, recipient of a gift, devisee under a will or an adverse possessor.
Once a legal right has been established over the burdened land there is no need to make further enquiries in order to
assess whether that legal right is binding.
Reduction in legal estates: LPA 1925, s 1. The only estates in land which are capable of being created at law are:
a) an estate in fee simple in possession (freehold) (This is in possession unless it is subject to some prior freehold
estate such as a life estate – any fee simple in remainder cannot be made legal).
b) A term of years absolute (leasehold). This occurs when a lease is granted initially for a specific period, such as one
year and at the end of that period it is renewed automatically for a further period. Leases may continue indefinitely
until either the landlord or the tenant brings it to an end by a process of serving a notice to quit upon the other. –
Term which is either certain at the outset or is capable of being made certain upon the service of a notice to quit.
LPA 1925, s 1(2):
(a) an easement right (positive right to do something over nearby land such as exercise of a right of way over it BUT
this can amount to a restriction on another’s use of land which will be the case if there’s in existence an easement of
light which will restrict a landowners ability to build on his own land =obstruct the flow of light) or privilege in or
over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute =
take effect as a legal interest. Covers profit e prendre which is the right to go onto another’s land and to take
something from the land which include the right to take wood or fish.
(b) a rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute or
a fee simple absolute; (right of the owner to receive a periodical payment from the owner of the burdened land).
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