Registered title

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The Register is Divided into Three Parts

1.       The Property Part

a.        Indicates freehold or leasehold (and how long the lease is for)

b.       Shows if the land is “dominant”, with respect to easements and restrictive covenants, but noting here is not mandatory

c.        Shows the approximate file plan (boundaries), as noted by Lewison LJ in Drake v Fripp [2011]. Thus the land registry plans will not settle boundary disputes.

2.       The Proprietorship Part

a.        This states the grade of title, showing the name and address of the registered proprietors and indicates the restrictions affecting the right to deal with the land.

3.       The Charges Part

a.        This contains “notices” of interests subject to registration such as restrictive covenants. It contains a note of any mortgage by registered charge created out of the estate registered and a note of any other registered estate (e.g lease) created out of the estate registered.

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S4 LRA 2002

(1) The requirement of registration applies on the occurrence of any of the following events—

(a) the transfer of a qualifying estate—

(i) for valuable or other consideration, by way of gift or in pursuance of an order of any court, [...]

(ii) by means of an assent (including a vesting assent);

                (c) the grant out of a qualifying estate of an estate in land—

(i) for a term of years absolute of more than seven years from the date of the grant, and

(ii) for valuable or other consideration, by way of gift or in pursuance of an order of any court;

(d) the grant out of a qualifying estate of an estate in land for a term of years absolute to take effect in possession after the end of the period of three months beginning with the date of the grant

                (g) the creation of a protected first legal mortgage of a qualifying estate.

(2) For the purposes of subsection (1), a qualifying estate is an unregistered legal estate which is—

(a) a freehold estate in land, or

(b) a leasehold estate in land for a term which, at the time of the transfer, grant or creation, has more than seven years to run.

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Grades of Freehold Title

-          Absolute Title: where the applicants title is sound, the title deeds are in order and nobody else could claim the land. The Govt. are then technically guaranteeing that the proprietor owns the land. They are still subject to overriding interests, protected TP rights and equitable interests of the trust to which the trustee had notice if he is the registered proprietor.

-          Possessory Title: When the applicants claim to ownership is debatable, it particularly occurs where the title deeds produced by the applicant are inadequate, or if the applicant cannot produce any at all. The registry is merely accepting that the possessor is currently in control of land, not the owner. Undisputed possession for 12 years leads to absolute title.

-          Qualified Title: granted where there is a minor question mark, for example if the document of title was not legible. 

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Grades of Leasehold Title

1.       GOOD LEASEHOLD: the existence of this is due to the fact the tenant is not allowed to see the landlords title deeds and therefore must take the chance that the landlord owns the land. The granting of GL guarantees that the lease is valid, but only on the assumption that the lessor’s title to the reversion is sound.

2.       ABSOLUTE LEASEHOLD: Out and out guarantee that the lease is valid and that the tenant is owner of the lease. It is in practice where the landlord reversion is already registered and the tenant has been able to persuade the landlord to present the freehold title deeds to the land registry.

3.       Possessory Leasehold: where the landlord has possessory title

4.       Qualified leasehold: virtually unheard of

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SS62-64 LRA 2002

1.       A good leasehold may be upgraded to absolute if the registrar is “satisfied the title to the freehold and the title to any intermediate leasehold”.

2.       Possessory freehold may be upgraded to absolute if the title has been registered for 12 years or the registrar is for some reasons satisfied the proprietor’s title is sound.

3.       A possessory leasehold may be upgraded to good if the title has been registered for 12 years.

4.       A qualified title may be upgraded if the registrar becomes satisfied the title is sound.

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S27 LRA 2002

27 Dispositions required to be registered

(1) If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

(2) In the case of a registered estate, the following are the dispositions which are required to be completed by registration—

(a) a transfer,

(b) where the registered estate is an estate in land, the grant of a term of years absolute—

(i) for a term of more than seven years from the date of the grant,

(ii) to take effect in possession after the end of the period of three months beginning with the date of the grant,

(iii) under which the right to possession is discontinuous,

(e) the express grant or reservation of an interest of a kind falling within section 1(2)(b) or (e) of the Law of Property Act 1925, and

(f) the grant of a legal charge.

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Basic Overrides and Protection:

Most minor interests are capable of being promoted to overriding by operation of Sch 3 Para 2 LRA 2002. If an owner of an overreachable equitable interest is in actual occupation of the land, their rights can still be overreached provided the purchase price is paid by the purchaser to a minimum of two trustees or a trust cooperation (ss2 and 27 Law of Property Act 1925) and in Flegg [1988].

Protection of MIs

Notice – S32 LRA  2002 a notice is an entry on the register in respect of the burden of an interest affecting a registered estate or charge.

S33 provides a list of interests for which no notice may be entered onto the register. This will need to be protected by the entry of a restriction (S40 LRA 2002)

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S33 LRA 2002

Excluded interests

No notice may be entered in the register in respect of any of the following—

(a)an interest under—  (i)a trust of land, or (ii)a settlement under the Settled Land Act 1925 (c. 18),

(b)a leasehold estate in land which— (i)is granted for a term of years of three years or less from the date of the grant, and (ii)is not required to be registered, (c)a restrictive covenant made between a lessor and lessee, so far as relating to the demised premises,

(d)an interest which is capable of being registered under the Commons Registration Act 1965 (c. 64), and

(e)an interest in any coal or coal mine, the rights attached to any such interest and the rights of any person under section 38, 49 or 51 of the Coal Industry Act 1994 (c. 21).

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Further Explanation of S33 LRA 2002

Therefore the types which do require entry include:

-          Equitable lease due to a lack of formalities

-          Equitable lease due to a failure to substantively register the lease

-          Equitable lease created out of an equitable estate

-          Equitable easements and profits a prendre

-          Freehold restrictive covenants

-          Home rights of occupation for spouses and civil partners

-          Equitable mortgages 

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Effect of Failure to Register a Notice - Fraud

Whilst mere notice of an itnerest, not protected by entry on the register should not prevent a purchaser taking free from it, equity has shown itself willing to intervene in cases of Fraud (Lyrus v Prowsa [1982]). 

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Restrictions

A special limit on the registered proprietor’s freedom to dispose of the land, covered by SS40-41 LRA 2002.

A restriction should be used where the land is subject to a strict settlement, trust for sale or trust of land.

Therefore:

-          Where land is held under a trust for sale or trust of land, the trustees are of course the registered proprietors. A restriction should be entered, however requiring there to be at least two trustees for a valid disposition and

-          Where the land is subject to strict settlement, the life tenant is owner of the fee simple and is therefore the registered proprietor. A restriction could be entered that money from the sale must be paid not to the RP but the trustees of the settlement.

Constructive Trust Interests must be protected by a restriction. They can however be overriding (Sch 2 Para 2 LRA 2002). 

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Schedule 3 LRA 2002 Local Land Charges, Easements

Local Land Charges – Sch 3 Para 6 – each district council keeps a register of local land charges, which apply whether title to land is registered or unregistered. They cover public law rights such as listing of historical buildings and provisions for makings of roads.

Easements & Profits – any legal profit, equitable profit, legal easement or equitable easement created before 12 October 2003 are overriding interest. After this date a legal easement or profit arising by implied by grant or prescription will only be overriding (Sch 3 Para 3) if one of the following requirements is fulfilled:

1.       Purchaser had actual knowledge of easement of profit

2.       Existence of such a right would have been apparent on a reasonably careful inspection of the land over which the easement of profit is exercisable

3.       If the easement of profit has been exercised at least once in the year prior to the land transfer.

Any express grants of easement or profit must be registered (S27(2(d) LRA 2002). Any equitable E&P’s after October 2003 are always minor interests, and so cannot be an overriding interest. 

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Actual Occupation

The definition was somewhat clarified in Abbey National v Cann [1991], suggesting that it involves a degree of permanence and continuity. It also however clarified that temporary absence does not mean there is not actual occupation, as long as they show an intention to return, as seen in the case of Chhokar v Chhokar [1984], where the husband sold his house whilst his wife was in hospital having a child. It was again supported in the case of Link Lending v Bustard [2010] where Mrs Bustard was in a mental asylum, she regularly visited the house, the woman she transferred the house too however couldn’t make the required payments and the bank took repossession. However the court held that Mrs Bustard had an overriding interest.

Children cannot be in actual occupation, as they are in a shadow of that of their parents – Hypo-Mortgage Services v Robinson [1997]

Strand Securities v Caswell [1965] – Mr Caswell allowed his daughter to live in the house rent free. He was held not to be in actual occupation, however he would have been had he collected rent/sublet (S70(1) LRA 1925), or hired his daughter as say a housekeeper - she would then have been his agent

If you only occupy part of an area of land, then that is the only area over which you have an overriding interest (Sch 3 Para 2 LRA 2002).

Flegg – overriding interests can be overreached.

Under the LRA 2002, you will only forfeit overriding status if you fail to disclose such a right when reasonably expected to do so. 

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Rectifying the Register - Mistake

Mistakes usually fall into three categories:

1.       Double conveyancing – when land is conveyed to one person, and then another.

2.       Fraud/forgery

3.       Wrong person registered as owner – this could be a piece of land assumed to be attached to one property when in fact it is not (139 Deptford High Street [1951]

The registered proprietor can only lose the land registered in their name if:

1.       They were fraudulent

2.       Negligent

3.       It is for some other reason unjust not to rectify the register (now Sch4 Para6,(2) LRA 2002) it must be absolute clear that justice demands, only had one real case (Epps v Esso [1973]) 

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Rectifying the Register - Indemnity

Indemnity

Sch 8 LRA 2002 – a registered proprietor against whom rectification is granted is entitled to indemnity. They will get the value of the estate or interest that they have lost (para 6(a) LRA 2002). There is however no indemnity if subject to an overriding interest as per Re Chowood [1933]. Or if he falls foul of Sch 8 Para 5.

Claimant’s fraud or lack of care

5(1)No indemnity is payable under this Schedule on account of any loss suffered by a claimant—

(a)wholly or partly as a result of his own fraud, or

(b)wholly as a result of his own lack of proper care.

(2)Where any loss is suffered by a claimant partly as a result of his own lack of proper care, any indemnity payable to him is to be reduced to such extent as is fair having regard to his share in the responsibility for the loss.

(3)For the purposes of this paragraph any fraud or lack of care on the part of a person from whom the claimant derives title (otherwise than under a disposition for valuable consideration which is registered or protected by an entry in the register) is to be treated as if it were fraud or lack of care on the part of the claimant.

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