Impact of the Land Registration Act 2002

Impact of the domain of a function readjustment come 2002A enrollment scheme far more(prenominal) comprehensive than polish overbears is found nowa daylights in the work up Registration Act 2002. The convention signifi after partce of this is that the show up tells the vendee who owns the statutory terra firma. The strategy moreover is non limited to juristic estates. Subject to some exceptions ( decree pursuit), all legal and faithful relate group mustiness be bowed on the register if they atomic number 18 to admit a vendee.1The outset thing to ascertain(p) when dealing with any piece of priming is which system of conveyancing is to be applied. And it is clear in the scenario that the inflict is registered.2The purchaser exit want to feel whether any third parties project chastens to the go through which index interfere with the intended use of it. C at oncern to the highest degree these matters get out put across the purchaser to make extensi ve enquiries in the beginning the purchase of the estate is at long last concluded.3A.Legal occupys non exceeding seven years constitute overrule affaire and this falls chthonic(a) schedule 3, para 1 of LRA 2002. all of a sudden legal leases are specifically excluded by Para 1 from the form of short leases which decree registered disposition. That includes leases which are to take answer in bullheadedness more than three months afterward the date of grant.4 Polly comes to the cottage after Alisha brought it exclusively Polly was given the lease the previous year. And since Alisha didnt find any dimension in the cottage before buying we enkindle assume that Polly returned after a year to take ownership. In that case Sec.4 (1) (d) applies which makes the lease non an overturn interest. Because such leases mean that in that evaluate is a real seek that the purchaser baron buy the estate without memoriseing that it is subjected to a lease when the populate is n ot necessarily in possession of the primer. In such scenarios we raft conclude that only the facts matters.And if Polly wants her legal lease to be comforted cunning that she wont be in possession of the cottage for some time she should curb made a notice5 in the register slightly her lease. But certain interests hind endnot be protected by notice6 , iodin such case is when the lease doesnt exceed more than three years, interest under a trust of land or restrictive covenants. Since Pollys lease is for four years it can be entered into the placards register. The fact that an interest is the subject of a notice doesnt mean that the interest is valid. However, if the interest is valid, the notice ensures both(prenominal) that it amazes any purchaser for valuable consideration7 , and he knows about it before he takes the estate.8It is therefore much safer to protect such interests by notice. Once such an entry has been made the interest losses its preponderant status9 , ex clusively of course binds a disponee for valuable consideration.B.It is essential to remember that, it is the estimables of the occupants that bind purchasers and not the clientele itself. The requireant must always prove two elements literal personal line of credit and an interest in land. In issue Provincial situate v Ainsworth10 it was held that deserted wifes equity to be a mere personal right on against her husband her occupation made no difference.11Judges earn regularly emphasized that the chief of whether a ships company is in factual occupation is essentially a question of fact. master copy Wilberforce stated that12, It is the fact that matters and what is required is strong-arm posture on the land and not some en gentlement in faithfulness this was stated in Abbey National v Cann. In LRA 2002 Schedule 3 , Para 2 if occupation is established but the interest claimed was not known to the purchaser , the question will then be whether the occupation was obvious on sound critique of the land.13Wilma daily comes home even for a short piece and it is very much unclear whether Alisha didnt notice that. And the wedding hit is good evidence to the fact that Wilma may have a parcel out in the land. A thorough search should have taken lay in such risky matters which Alisha didnt. The question is Wilma not being make up permanently in the cottage because she was looking after her sick cause which was clear define by the case of Chhokar v Chhokar14in relation to LRA 1925 were a similar situation has being dealt with. The court of appeal said that it had no obstacle in holding that she was in occupation at the date, and went on to describe her right in the property as an rife interest. The effect of temporary absence is now being considered by the courts in interrelate Lending Ltd v Bustard.15Occupation of Wilma was obvious enough through the inspection even if Alisha didnt know about it. This means that provided the occupation is disc overable, the disponee may still be bound by an interest of which she doesnt know ( Malory Enterprises Ltd v Cheshire 2002 )16Nevertheless in Kingsnorth pay Co Ltd v Tizard17 provide that there was actual occupation even when the wife was decoupled she visited every day to look after her children. Although she was not living there her daily activities might be regarded as sufficient to justify the result. The facts are all Copernican in such a case.18The result in Chhokar seems clear, but what if the trafficker had pick outd all evidence of the wife. Like in the scenario it is unclear whether Alisha sees possessions of Wilma an otherwise(prenominal) than the wedding photograph before sale. And since Bob lies about a divorce Wilmas claim might be stronger in such a circumstance.The purchaser has a statutory defence to an overriding interest if interrogation is made of the occupier, but the rights are not disclosed.19 This is a clear lead to a purchaser as to what should be do . Those in actual occupation must be discovered and then asked what their interests are. In practice and in the scenario they tend to rely on the sellers knowledge. This might be convenient but gives no auspices. And when Alisha identified the wedding photograph she should have been careful enough to ask the occupier what their interests are rather than whether she is face or not. This is because there is no need for overriding interest to be the source of the actual occupation.20The scenario doesnt state that Wilma and Bob are split so this matter can be taken under Family equity Act 1996, s31 (10), that where one spouse or civil partner owns the family home, the other spouse has a right not to be evicted if already in occupation and a right with a leave of the court to enter and occupy if not already in occupation. And this lasts as long as the marriage continues. to a lower place Sec.31 Wilmas home rights constitute a charge on the estate or interest of Bob and will bind Al isha in the property for valuable consideration if they are protected by a notice on the register of the title. This acts as an exception to overriding interests and thus binds Alisha.C.Easements and mesh can be created expressly or impliedly by granting another person a right over ones land or by reserving a right over land which one is transferring to another person.21Only legal easements are now capable of overriding the register. The LRA 2002 effectively reversed the controversial case of Celsteel Ltd v Alton domicile Holdings Ltd22 which held that both legal and equitable easements were overriding within 1925 scheme. But if somehow the deed of conveyance is registered it loses its overriding status.We can assume that Maxwells claim fulfil the requirement for a valid easement as laid follow out in Re Ellenborough parking area.23A valid easement can be created by prescription drug which is long use of land and under Sec 2 of the Prescription Act 1832. The use for many years of a right which is capable of being an easement can create a legal easement by prescription.24 Prescription arises if an easement has been used openly, as of right, without permission and continuously by one fee simple owner against another, provided that the right could have legitimately been granted by the landowner.25 Maxwell does use the racetrack openly and even notify Alisha of his right and say he has been victimisation it for any years. It is somewhat unclear whether the prescription is by lost modern font grant. at long last, we can come to a conclusion which interests bind Alisha and which does not. The legal lease of Polly doesnt bind Alisha since theres lack of physical presence and notice as explained. But the share of Wilma does bind Alisha since she has some equitable rights towards her share of the property. And finally the easement will excessively bind Alisha through the Prescription Act 1832.Critically examine the rationale for the continued instauration of interests which override. preponderating interests are all important(predicate) and controversial because they contravene the most prefatorial registration principle they bind purchasers despite not being entered on the RegisterRoger Smith, Elements of Land law (Pearson Longman 2007)In a sense overriding interests are rather like trump cards of the registered land system, victorious automatic priority to any rights which are subsequently acquired by a person in the land. Not only that, but they can also lead to alteration of the register with no compensation being collectable to the purchase. Little wonder then that a former Chief Land Register referred to them as a stumbling block.26When compulsory title registration was introduced, the aim of its creators was to simplify conveyance by placing all the essential information about an estate in land on a register. thenceforth a purchaser intending to buy the land will only have to look up at the register in cast to discover a ll what he needed to know about the property.27A major difficulty arose from the category of overriding interest. The original notion of land registration was that the register would provide a complete record of the title, so that the purchaser will be able to buy it with minimum or other enquiries or inspections.28The fundamental principle behind registered land is the reverberate principle, which is to reflect accurately and completely and beyond all argument the actual facts that are material to a mans title. Overriding interests represents the greatest breach in the mirror principle. They were not accidentally created but rather deliberately make by the legislature and given automatic effect precisely because they should be obvious to any prospective purchaser or their enforcement is too important to depend on registration.29On the other hand the curtain principle is perhaps the most ambitious motive behind the origin 1925 Act and it remains a key principle under 2002 Act. T he aim is to confirm certain types of equitable interests off the register completely. As Williams and Glyns cuss v Boland shows, if the curtain is not raised the purchaser can good be bound by such equitable interests. This problem clearly involves striking a balance between surety of the purchaser and protection for the occupier of land and it arose largely due to social and judicial changes.30Paragraphs 1 to 3 of Schedule 3 cover three types of interests which were overriding under LRA 1925. They are short leases, rights of persons in actual occupation and easements and profits.Schedule 3, Para 1 shortens the length of a lease from not exceeding 21 years to not exceeding 7 years. And in the future it can reduce to 3 years with the effect of e-conveyancing31. The reason why these leases override is that it would be unreasonable to expect short leases to be registered and if they were the register would be cluttered up by them.Under the 1925 Act anyone with proprietary right in property and also in actual occupation could claim an overriding interest. In Williams Glyns Bank v Boland in 1981 defined actual occupation as It is the fact of occupation that matters and what is required is the physical presence in the land and not some entitlement in law. However, Schedule 3 of LRA 2002 has reduced the extent to which these interests can bind a purchaser on subsequent registration of title so that a purchaser will not be bound if the occupation would not have been obvious on a reasonable inspection of the land at the time of the disposition.Under LRA 1925 s.70 (1) (a) all legal easements and profits and certain equitable easements32 were overriding. But this wide category was reduced by LRA 2002 under Schedule 3, Para 3 where only legal easements by prescription or implied easements and profits were overriding. The LRA 2002 effectively reversed the controversial case of Celsteel Ltd v Alton House Holdings Ltd33 which held that both legal and equitable easement s were overriding interests within the 1925 scheme.Under LRA 1925 Sec. 70 (1) (f) a low-set could obtain title after 12 years adverse possession.34 The new rules introduced by LRA 2002 apply to any squatter who had not completed the 12 year imitation period before the Act came into force on 13th October 2003. The rules are designed to protect the rights of the registered proprietor, and as a result the squatters chances of acquiring title to land are greatly reduced by the new scheme.35Finally local land charges override but they should be discovered by a local land charges search carried out before purchase. that other interests, such as chancel repair liability will cease to override on 13 October 2013. Thus the snap shaft of light is becoming more accurate.36Why do we have them? At one time it was argued that the register replaces the title deeds and that the registration system should not protect purchasers in respect of interests not generally found in title deeds. Although this seems correct as historical explanation37, the law commission has spurned it as an approach fit for the modern law. Their view is that,In the interest of certainty and of simplifying conveyancing, the class of right which may bind a purchaser otherwise than as the result of an entry in the register should be as narrow as possible but interests should be overriding where protection against purchasers is needed, yet it is either not reasonable to expect or not sensible to require any entry on the register.38They are also difficult to discover on an inspection of the land.39 Not surprisingly the 2002 Act is working towards either minimizing or abolishing some overriding interests but has not yet worked out a strategy to eradicate them once and for all.40 To make them lose their rights would contravene Article 1 of the First communications protocol of ECHR. Active promotion of the advantages of registering interests could work in favor of both the purchaser and the beneficiaries of these rights. Times have changed and the importance of moving on cannot be underestimated.41This for sure illustrates the deepening of the crack in the mirror principle of registered land. In order to narrow the crack, the class of overriding interests may be made more certain by narrowing the class. On the grounds of public policy, there will perhaps always be interests which will need protection against the purchaser, where it will be unreasonable to register the interests. Therefore, the extent of the crack can never really get away from third- party interests, which is just as important as having quicker and cheaper conveyancing. Until legislation makes clear specifications on what fussy interests can qualify, the concerns of overriding interests will remain.BibliographyTextbooksJudith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014)Roger J Smith,Property Law(7th, Pearson discipline Limited, 2011)Martin Dixon , Gerwyn LL H Griffiths and Emma Lees, QA Land Law (8th, Routledge, 2013)Journal ArticlesMatthew Roach, the end is nigh for Overriding interests -Or is it? Summer 2013 2Stewart-Wallace , principles of land registration, p 32Online resourcesMangala Murali, Overriding Interests a enigma of English Land Law (Law Brief Update October 10, 2012 ) http//www.lawbriefupdate.com/2012/10/10/overriding-interests-a- riddle-of-english-land-law/ accessed 1/12/2015StatuesLand Registration Act 1925Land Registration Act 2002Prescription Act 1832Limitation Act 1980CasesBakewell Management Ltd v BrandwoodCelsteel Ltd v Alton House Holdings 1985Celsteel Ltd v Alton House Holdings Ltd 1985 1 WLR 204Dewan v Lewis 2010 EWCA Civ 1382Kingsnorth Finance Co Ltd v Tizard 1986 1 WLR 783 (Ch D)Link Lending Ltd v Bustard 2010 EWCA Civ 424Malory Enterprises Ltd v Cheshire 2002National Provincial Bank v Ainsworth 1965 AC 1175Re Ellenborough Park 1955 3 All ER 667Williams Glyns Bank Ltd v Boland 198111 Roger J Smith,Property Law(7th, Pearson facts of life Limited, 2011) 532If one is not sure whether a registration has been made it can be found out by making an index map search which will tell you whether the estate has been registered. Further details may be obtained by making a full search of the register, which since 3 December 1990, can be done without the consent of the estate owner.3 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 384 S.4 (1) (d)5 The Act defines a notice as an entry in the register in respect of the burden of an interest affecting a registered estate or charge S.32(1)6 S.337 S 32(3)8 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 1069 S 29(3)101965 AC 117511 Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 25412 Williams Glyns Bank Ltd v Boland 198113 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 118-1191415 2010 EWCA Civ 42416 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford Universi ty Press, 2014) 11517 1986 1 WLR 783 (Ch D)18 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 11519 Sch3 Para 2b20 Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 26421 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 11122 1985 1 WLR 20423 1955 3 All ER 66724 The role of this doctrine was summarized in Dewan v Lewis 2010 EWCA Civ 138225 Bakewell Management Ltd v Brandwood26 Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 25127 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 8628 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 8629 Martin Dixon , Gerwyn LL H Griffiths and Emma Lees, QA Land Law (8th, Routledge, 2013) 1030 ibid31 The introduction of e-conveyancing will have tremendous significance for the operation of the registered title system. It will only remove the gap between execution and registration which , as we hav e seen , can cause problems , but will also reduce very well the number of interests which can be created off the register.32 Celsteel ltd v Alton House Holdings 198533 1986 1 WLR 51234 Even if the squatter is no longer in possession at the date of disposition.35 Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 14136 Martin Dixon , Gerwyn LL H Griffiths and Emma Lees, QA Land Law (8th, Routledge, 2013) 2137 Stewart-Wallace , principles of land registration, p 3238 Another important calculate permeating the changes introduced by LRA 2002 is the extent to which a purchaser may be expected to discover these interests without making extensive inquiries.Because overriding interests bind transferees of the land even though they are by definition, not protected on the register, they are widely acknowledged to be potential source of difficulty in registered conveyancingThe law commission report no254 199839 Examples include rights of an occupier of land, a l ease for a term of less than seven years, profits a prendre (fishing rights or shooting or hunting rights).40 The rights of persons in actual occupation present formidable challenges for reformists and it is this area of law that professionals must work on to find a conducive solution.41 Mangala Murali, Overriding Interests a conundrum of English Land Law (Law Brief Update October 10, 2012 ) http//www.lawbriefupdate.com/2012/10/10/overriding-interests-a-conundrum-of-english-land-law/ accessed 1/12/2015