Land as “Property”

Real property (realty) and personal property (personalty).

If the owner of real property (freehold land) had been dispossessed of his land, he
could commence an action in the courts for the land to be returned to him. Action
called real action (action in rem).

Personal property (personalty) could not be recovered but was the subject of an
action for damages. Personal action (action in personam).

Personal property is also known as chattels. Can be divided into chattels real and
chattels personal.

Chattels real – consist of leasehold property. In the past, a dispossessed tenant

could obtain only damages (money) and was not entitled to the return of the land
over which he had a lease. No longer the case.

Two types of chattels personal:

- Choses in possession – tangible items
- Choses in action – intangible property (intellectual property)

In modern land law leasehold and freehold are treated the same way. Distinction
between realty (freehold) and personalty is important in the law of succession.

“Property” has a very specialised meaning in law. Refers to the rights a person has
over that item. Rights can be transferred from one person to another. Property rights
are transferred by contract or gift.

Valid contract needs:

1. An agreement which consists of an offer by the owner to sell and an
unconditional acceptance by the buyer of all the terms of the offer
2. An intention by the parties that they should be legally bound and
3. Consideration – something of value – given by each party to the other.

Sale “subject to contract” – an unenforceable agreement – the sale is not yet binding

Exchange of contracts – an enforceable agreement – transaction becomes legally

binding only when the contracts are exchanged. Buyer is obliged to buy the property
and the seller is obliged to sell it. Buyer does not have full rights in the land but does
hold an interest in it.

Completion – transferring the property. Completion occurs when the property is

transferred to the buyer. Must be by deed (s52 Law of Property Act 1925 (LPA
1925)).

The Land Itself

“Land” includes various tangible and intangible items which are attached to land. A
buyer of land expects to receive various items with the land, such as the buildings
constructed on it.

The general rules governing what is included in the definition of land are from the
common law and statute.

The common law

Two common law presumptions used to define the extent of land:

- “he who owns the land owns everything extending to the heavens and to the
depths of the earth”
- “whatever is attached to the ground becomes part of it”
These presumptions are subject to various limitations.

Statutory definition

s205(1)(ix) Law of Property Act 1925 (LPA 1925) defines land as including: land of
any tenure, any mines or minerals whether or not held apart from the surface,
buildings or parts of buildings, whether the division is horizontal, vertical or made in
any other way… and other corporeal hereditaments.. and other incorporeal
hereditaments.

“tenure” refers to the way the land is held.

“corporeal hereditaments” means physical or tangible objects.

“incorporeal hereditaments” are various intangible rights associated with the land.

Fixtures and fittings

Anything attached to the land becomes part of it. Includes buildings, trees and
plants. Such attached object is known as a fixture, and when the land is sold, leased
or mortgaged, fixtures will also pass as a part of the transaction unless the seller
makes it clear that they are not intended to pass.

Items that are not attached to the land are called fittings (chattels) and do not
automatically pass with the land unless otherwise agreed.

Transfer or sale of land must be by deed (s52 LPA 1925) but transfer or sale of
goods doesn’t have to be. Sale of goods and other items will usually be valid even
though the transaction is verbal or merely written.

It is important to distinguish between items that are part of the land (fixtures) and
need to be transferred by deed, and those that are not part of the land (fittings or
‘chattels’) do not need to be transferred by deed.

To avoid disputes over the unexpected removal of items such as garden sheds,
greenhouses or rotary washing lines, the Fittings and Contents Forms should be
completed.
Distinguishing between fixtures and fittings (chattels)

Two tests to determine what amounts to a fixture – large degree of overlap between
the two.

Degree of attachment

If it is attached to the land other than by its own weight, it is held to be a fixture.
Holland v Hodgson (1872) spinning looms were bolted to the floor of a mill. Attached
other than by their own weight, the looms were held to be fixtures. Degree of
attachment test alone cannot be conclusive.

Purpose of attachment

Looks at the purpose of the attachment: was the object attached for its own benefit
or was it attached for the benefit of the land as a whole? Leigh v Taylor (1902) a
tapestry that was nailed to the wall of the premises was held to be a fitting. One
hangs a picture, painting or tapestry to show the object itself to its best advantage
and not to benefit the house as a whole. Exceptions, such as where the object is part
of a general decorative scheme. D’Eyncourt v Gregory (1866) court held that marble
statues of lions in a garden were fixtures as they were there to increase the owner’s
enjoyment of the land.

Permanence of the attachment

Botham v TSB Bank plc (1996) made clear that the permanence of the attachment is
also relevant. How long the object is likely to be attached to the land is quite a
separate issue from the degree of attachment. Lampshades and curtains are unlikely
to be considered as fixtures, whereas light fittings and fitted shelves probably will be.

Difficult to determine whether some common household items are fixtures. H E

Dibble v Moore (1970) a greenhouse was held not to be a fixture. Elitestone Ltd v
Morris (1997) the House of Lords decided that a bungalow built on pillars was a
fixture. Chelsea Yacht & Boat Co v Pope (2001) a houseboat moored by cables and
ropes with connection to mains water and power was held to be a fitting.

Further developments in Taylor v Hamer (2002), a large country house was offered
for sale. Dispute concerned a number of flagstones, and whether they were to be
included with the property. There when the buyer inspected and made an offer for
the property but removed prior to purchase. They were attached to the land only their
own weight the seller would have been entitled to remove them, but he gave
misleading replies were made about them, and disguised their removal with
grassland. Buyer brought an action for their return, Court of Appeal held that, for
reasons of decency and common sense, buyer was entitled to receive what he had
been shown on inspection and what he believed he would be receiving.

Peel Land and Property (Ports No. 3) Ltd v TS Sheerness Steel Ltd (2013) court held
that a number of items brought on to the site by the original tenant were not attached
to the land and so remained the tenant’s chattels and were removable. A furnace,
which was integrated into the building, was not considred removable.
Court held that it is the degree and the purpose of the attachment that is to be taken
into account in order to distinguish a chattel from a fixture, Not the size and weight of
an object that determines whether it is a fixture, degree and purpose of attachment
that must be considered.

Limitations on the extent of the land

Airspace

Infringing upon a person’s airspace is as much a trespass to land as is walking

across his garden (Kelsen v Imperial Tobacco Ltd (1957)). Common examples of
trespass to airspace include overhanging guttering or billboards. Anchor Brewhouse
Developments v Berkley House (Docklands) Developments (1987) jib of a crane
trespassed in the airspace above the claimant’s property. Injunction was granted to
prevent this happening in the future.

The owner is only allowed rights in the airspace to such a height as is necessary for
the ordinary use and enjoyment of his land and structures on it (Bernstein v
Skyviews Ltd (1978). Lord Bernstein failed to prevent aerial photographs of his
house being taken by an aircraft from a reasonable height above the ground.

s76 Civil Aviation Act 1982, a landowner cannot object to the passage of aircraft
during normal flight over land.

Underground

Tunnelling under a neighbour’s property would amount to a trespass.

A landowner is not entitled to all minerals under his land. All mines of gold and silver
belong to the Crown, as does treasure by virtue of the Treasure Act 1996.

Oil extracted from the ground under the Petroleum Act 1998 belongs to the Crown.
Bocardo SA v Star Energy UK Onshore Ltd (2009) the defendants owners of a
licence granted by the Crown for oil extraction, bored a hole under the claimant’s
land. Three pipelines were drilled diagonally into the substrata of the claimant’s land
at a depth of 800 feet.

Held that there had been a trespass to the land of the claimants. Claimants were
awarded damages by the Court of Appeal of £1,000. Nominal sum was granted as
there was only a technical trespass. No interference with the claimant’s enjoyment of
the property or interference with their rights.

Infrastructure Act 2015 allows fracking by oil and gas companies to take place below
300 metres under neighbouring land without the landowners’ permission.

Common law rule and the decision in Bocardo SA v Star Energy would still apply to
the subsoil down to 300 metres.

Coal belongs to the Coal Authority by virtue of the Coal Act 1938.
Surface

Surface of the land is part of the land. Minerals found on the surface are part of the
land and if a seller wishes to reserve mineral rights, must do so expressly.

Buildings are part of the surface, as are trees and plants, because they are attached
to the land. Restrictions in the form of planning regulations, including tree
preservation orders, can affect what a landowner does with the land.

Lynn Shellfish Ltd and Others v Loose and Another (2016) the extent of an exclusive
prescriptive right was determined by reference to the lowest astronomical tide. Only
occurs ever 18 years. The boundary or extent of a right over a foreshore can
fluctuate depending on the state of the tide.

Remedies for trespass to land

Three main remedies:

- Damages – could be used where actual damage has occurred to the
claimant’s land.
- Injunction – used to prevent intrusions into airspace, underground or even
intrusions on the surface. (Anchor Brewhouse)
- Self-help i.e cutting off branches from overhanging trees.

Incorporeal hereditaments – physical items that make up the land are the corporeal
hereditaments. Incorporeal hereditaments – one person’s right over another person’s
land. Such rights are intangible and so are known as incorporeal rights. Most
important are easements (rights of way).

Estates and Interests in Land

Legal estates – someone purchasing land buys tangible item, but he also purchases
an estate or interest in that land.

Method of holding land is tenure and describes the services which a landholder had
to perform in return for the land.

A freeholder and a leaseholder are said to hold an estate in land. An estate in land
describes how long the land is to be held.

Only two legal estates in land recognised by law under s1 (1) Law of Property Act
1925 (LPA 1925):
- The fee simple absolute in possession (freehold)
- The term of years absolute (leasehold)

Fee simple absolute in possession

Fee simple – passes to heirs on death. Fee – capable of being inherited and simple
– no limitation on who can inherit.
Absolute – not subject to any limitations which might bring the estate to an end
prematurely.

In possession – the holder of the estate must have an immediate right to go into
possession.
Note that possession here includes the right to receive rent, thus, a landlord may
hold an estate in fee simple absolute in possession even though the tenant is entitled
to actual possession.

To be legal, the estate must be created by deed (s52 LPA 1925).

Freehold exists in perpetuity (goes on forever).

Term of years absolute

Term of years absolute (lease). Lease is a legal estate which exists for a fixed-term
or periodic (“terms of years”) and includes weekly or monthly tenancies (s205(1)
(xxvii)LPA 1925).

Fixed-term tenancies terminate at the end of that time, but periodic tenancies must
be terminated by a notice to quit.

No requirement that the lease be “in possession”. A lease must come into effect in
possession within 21 years of its creation (s149(3) LPA 1925).

Lease must be created by deed to be legal. One exception – lease taking effect in
possession for three years or less at a market rent may be created in writing or orally
(s54(2) LPA 1925).

(See diagram for Legal Estates permitted by s1(1) LPA 1925.)

Legal Interests

Rights over the land of someone else s1(2) LPA 1925 – five such legal interests.

Legal easements and profits

Easement is a right which one property owner may have over a neighbouring piece
of land.

Profit is a right to take something from another’s land.

To be legal, an easement or profit must be equivalent to one of the two legal estates
and be by deed,

Legal rentcharge

Right to periodic payment of money, attached to land. Third party may be able to
collect a sum of money, usually annually. Rentcharge, if perpetual or granted for a
term of years absolute and if created by deed, will constitute a legal interest in land.
Rentcharges Act 1977 restricted the creation of new rentcharges.

Charge by way of legal mortgage

To be legal, the charge must be by deed and expressed to be by way of legal

mortgage. Give the mortgagee (lender) the right to take possession of and sell the
land if the mortgage is not repaid.

Certain charges arising under statute – little practical significance.

Rights of entry in legal leases and legal rentcharges

Where a landlord reserves a right to retake possession if the tenant does not comply
with his obligations in the lease, a right of entry is a legal interest. Rentcharge deed
in order to ensure payment of the rentcharge.

Equitable interests

Any interest which does not quality as a legal estate under s1(1) LPA 1925 or a legal
interest under s1(2) LPA 1925 will be equitable s1(3) LPA 1925.

These are interests which the courts of equity were willing to recognise which the
common law courts refuse to accept.

Trusts are only one example of equitable interests. Others include:

- Interests which do not comply with the required formalities a 21-year lease not
created by deed, but which is in writing, containing all agreed terms and
signed by the parties, would be an equitable lease.
- Following exchange of contracts, an estate contract arises – regarded as an
equitable interest
- The benefit of a restrictive covenant.
Even equitable interests must comply with some formalities. Must be created in
writing (s53(1) LPA 1925). Some exceptions (implied trusts – resulting or
constructive).

Distinguishing legal estates and interests from equitable interests

Two categories- legal estates and interests and equitable interests.

Legal estates and interests are those which were developed by the common law.
Legal estates and interests bind the world, means that any buyer of the land will be
bound by the legal estate or interest whether they know about them or not.

Equitable interests are interests which were developed by the courts of equity based
on the principle of fairness. Not all buyers will be bound by equitable interests. For a
buyer to be bound by an equitable interest, he needs to be given notice of the
interest.

Commonhold
Introduced by the Commonhold and Leasehold Reform Act 2002 (CLRA 2002) to
meet the needs of owners of flats where the owners are interdependent on each
other.

Commonhold is not a new estate in land but is one that is created out of an absolute
freehold registered estate.

Where the commonhold system is to be used, the property is registered at the Land
Registry as “commonhold land”. Owner of each individual unit is referred to as the
unit-holder and is registered as its freehold owner (s12 CLRA 2002).

Creation and Transfer of Legal Estates and Interests

Three stage process involved in conveyancing:

- An agreement ‘subject to contract’
- Exchange of contracts and
- Transfer of the legal estate on completion.

The formalities can be found in the following statutes:

- s2 Law of Property (Miscellaneous Provisions) Act 1989
- s52 Law of Property Act 1925 (LPA 1925)
- s1 Law of Property (Miscellaneous Provisions) Act 1989
- Land Registration Act 2002

Land in England and Wales is either registered or unregistered.

When a landowner wishes to prove that he owns land:

- produce a deed or set of deeds establishing ownership if the land is
unregistered
- give details showing that the land is registered at the Land Registry in the
form of an official copy of the land register.

Land which is currently unregistered will eventually be registered. The register is a

state guarantee of land ownership.

Sale subject to contract

In England and Wales a verbal agreement for the sale of land has no legal effect.
The buyer or the seller can withdraw from the transaction at any time.

Exchange of contract

Contracts in relation to the creation or transfer of an interest in land governed by s2

Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989). A contract for
the sale or other disposition of an internet in land will be void unless the contract:
- is made in writing
- incorporates all the terms which the parties have expressly agreed in one
document
- must be signed by or on behalf of both buyer and seller
Effect of a failure to incorporate all agreed terms can make the contract void. Keay
and Another v Morris Homes (West Midlands) Ltd (2012) a contract varying a pre-
existing contract omitted a crucial term. Contract failed to include an alleged promise
by the seller to carry out defined building works. The variation contract was a nullity
and could not be enforced as it did not comply with s2 LP(MP)A 1989.

Points to note about s2 LP(MP)A 1989

- Terms may be incorporated into a document either by being set out in the
document or by reference to some other document.
- Contracts for items such as curtains and other fittings do not have to comply
with s2 although, usually these items will be part of the main contract.
- Contracts which relate to the sale of land do not actually transfer the
ownership of the land itself.

After exchange of contracts has occurred, buyer has acquired an equitable interest
in the land and thus has the right to enforce the sale of the land. Seller refuses to go
ahead with completion, buyer can sue for damages and may be entitled to a court
order for specific performance required the seller to perform the contract.

Legal title vests in the seller, but the buyer has an estate contract.

Rollerteam Ltd and Another v Riley (2016) a contract “of” disposition was deemed to
be an immediate disposition of the property concerned, so s2 LP(MP) A 1989 did not
apply. Court of Appeal confirmed that s2 only applies to contracts “for” disposition.

Are two things a buyer needs to do:

1. Buildings insurance should be taken out form the date of exchange of
contracts
2. The estate contract will not bind third parties unless certain procedures are
followed by the buyer. Depends on whether the land is registered or
inregistered.

The seller can also obtain damages or obtain an order for specific performance if the
buyer refuses to complete.

Completion

Occurs after exchange, although the length of time between exchange and
completion can vary considerably. It is usually no longer than 28 days, possible for
exchange and completion to be on the same day.

Completion must be by deed by virtue of s52 LPA 1935:

All conveyances of land or of any interest therein are void for the purpose of
conveying or creating a legal estate unless made by deed.

Exceptions to this requirement:

- s54(2) LPA 1925: lease for three years or less
- s53(1) LPA 1925: equitable interest.
What is a Deed?

Deed is a formal document required when transferring legal title

Governed by s1 LP(MP)A 1989.

Deed must:

- be in writing
- make it clear on its face that it is intended to be a deed
- be validly executed as a deed by the parties to it

Valid execution requires the deed to be:

- signed by the individual in the presence of a witness who attests the
signature.
- delivered by the individual to the other party. Means that the person executing
it acted in such a way as to show an intention to eb bound by it. s1(5) if a
solicitor or licensed conveyancer or his agent or employee delivers the deed ,
they are presumed to act on behalf of the client.

Registered and unregistered land

Registered land

Where registered land is sold, the buyer does not become the legal owner on the
day of completion. Becomes the legal owner only when the transfer is registered at
the Land Registry; until then the buyer has an equitable interest.

There is a gap between moving into a property “registration gap”.

Rules relating to registered land are governed by the Land Registration Act 2002.

Unregistered land

1990 all sales of land must be registered. Where land is unregistered, sale will
trigger a process of compulsory first registration at the Land Registry. Day of
completion of the sale of unregistered land the legal estate is transferred. no
registration gap with unregistered land, first registration must occur within two
months of the completion date.

Easements and Profits

An easement is a property right which one person has over another’s persons’ land.

Most common are rights of way, rights of drainage and rights to run cables and pipes
under another’s land.

For an easement to exist both parties must have estates in land. Party who benefits
from the easement is known as the dominant owner and the party whose land
suffers the detriment (or burden) of the easement is the servient owner.
Easements are not public rights, they are private rights.

s62 Law of Property Act 1925 (LPA 1925), beneficial easements will usually pass
with the land and the buyer can enforce the easement unless the contrary is stated
in the conveyance.

Characteristics of an easement

To be capable of being an easement, four characteristics must be satisfied, as

established in Re Ellenborough Park (1956):

1. There must be a dominant and servient tenement – two pieces of land, one of
which takes the benefit of the right of the right and one of which is subject to
the burden of the right.
2. The right claimed must benefit the dominant tenement- must be of benefit to
the land. Useful test to determine whether or not this is so is to ask if the right
would make the land more valuable if sold.
In Hill v Tupper (1863) a claimant claimed the right to us a mooring for the
purpose of letting out pleasure boats for hire. Did not benefit the dominant tenement;
it was personal benefit to the claimant. P&S Platt Ltd v Crouch (2003) , the Court of
Appeal decided that the right to use river moorings was capable of being an
easements.
Moody v Steggles (1879) the right to place a pub sign on another’s land was
held capable of being an easement. The land and its use had been inextricably
linked. The easements benefits the land itself, s62 LPA 1925 provides that the
easement will normally be sold with the land.
3. Diversity of ownership and/or occupation. Different people must own and
occupy the dominant and servient tenements. Landlord can claim an
easement over his tenant’s land and vice versa because diversity of
occupation is sufficient.
4. The right claimed must be capable of forming the subject-matter of a grant.
The right must be capable of being expressed in a written document and must
meet the following requirements.
a. must be similar to existing easements.
Common easements include:
- rights of way
- rights of tenants to use common parts such as corridors
- rights of light through defined apertures
- rights to run cables and pips under or over land
- rights of drainage
- rights of support where adjoining premises provide structural
support for one another
Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and
Another (2017) – whether the right to use a golf course, swimming pool and tennis
court was capable of being an easement.
Gardens were within the scope of Re Ellenborough Park but the other rights were
not recognised as easements.
 b. must be no positive requirement for the servient owner to expend
money, except in the case of easements to maintain fences. Exception
appears to be limited to obligations on farmers to maintain fences for
stock-proofing purposes (Crow v Wood (1970)).
c. Easements must also be sufficiently definite. No easement for a
general right to a view (Aldred’s Case(1610)).

There must be no exclusive possession.

The dominant owner cannot exclude the servient owner from the land.

Wright v Macadam (1949) decided that the use of a garden shed for storage of coal
was capable of being an easement. In Grigsby v Melville (1973) a claim to store
foods in a cellar failed as an easement because it amounted to exclusive
possession.

Copeland v Greenhalf (1952) a wheelwright claimed an easement of a strip of land

close to his workshop on which he stored wheels. Right claimed was to wide and
extensive to be an easement.

Batchelor v Marlow (2003) the right to park and store cars was not capable of being
an easement as it gave the dominant owner exclusive possession of part of the
servient tenement. London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
(1994), where the courts decided that the right to park cars could be an easement.

Doubts were expressed by the House of Lords in the Scottish case Moncrieff v
Jamieson (2007) as to whether Batchelor v Marlow was decided correctly. House
considered whether exclusive car parking rights could be easements. Waterman and
Another v Boyle and Another (2009) applied Moncrieff. Right to park a car does now
appear to be a valid easement.

Legal and equitable easements and formalities

Knowing whether an easement is legal or equitable is important in how the easement

should be protected.

Legal Easements

Easements are legal interests under s1(2) LPA 1925:

- for a term equivalent to a legal estate, that is, a fee simple absolute in
possession, or a term of years absolute;
- in the form of a deed if created by express grant or reservation.

Legal easements bind buyers regardless of notice in unregistered land. Legal

easements are registrable and implied legal easements are interest which are
overriding in registered land.

Equitable easements
An easement for any less than a fee simple absolute or term of years absolute, or
one created other than by deed must be equitable.

Oral arrangements cannot create equitable easements. Equitable interest in land

must be created in writing under s53(1) LPA 1925.

Equitable easements need to be protected:

1. Unregistered land – created on or after 1 January 1926 must be registered at
the Land Charges Registry as a Class D(iii) land charge; easements created
before that date are subject to the doctrine of notice.
2. Registered land – equitable easements should normally be protected by entry
of a notice on the register.

Creation of easements

A right may be capable of forming an easement, it does not automatically become

one.

Acquisition or creation of an easement will take place through either a grant or a

reservation.

Where one person agrees that another should have rights over land which he
retains. Reservation occurs where a person reserves rights over land which he sells.

Grant of easements
1. Express Grant – one property holder expressly agrees that another should
have an easement over his land. Easement to be recognised at law, it must
be created by deed under s52 LPA 1925 and be equivalent to a legal estate.
not created this way, it will be equitable; such an equitable easement must, at
the very least be in writing (s53(1) LPA 1925).
2. Implied Grant- easements created by implied grant or prescription (long use)
are legal easements. Rules on implied grant and prescription a claimant has
the burden of proving the existence of the easement. Where there is sufficient
evidence the court will declare that the easement exists and it will be deemed
to be a legal easement despite the fact that it is not created by deed and is
not even in writing.
May be implied into a contract or conveyance. Various methods of implied
grant are based on what the parties to the agreement are presumed to have
intended.
a. Necessity – will be implied if absolutely necessary. Can arise where land is
landlocked and there is no other access without a right of way (Nickerson
v Barraclough (1981)). Inconvenience is insufficient to create an easement
of necessity. Titchmarsh v Royston Water Co Ltd (1899) there was no
easement of necessity where vehicular access to the highway was
possible. Easement of necessity may arise where the only alternative
would be to destroy a barrier (Sweet and Another v Soomer and Another
(2004)).
An easement of support will arise by implication where an owner sells one of
two adjoining properties.
 b. Common intention – may be an implied easement if the parties to the
transaction must clearly have intended. Liverpool City Council v Irwin
(1977) no express grant of an easement in favour of the tenants to use
staircases and lifts to reach their ninth and tenth storey flats. Such an
easement must obviously be implied.
c. The rule in Wheeldon v Burrows (1879) – person who divides his land into
to and then sells one part always needs to be careful that implied
easements are not being created in favour of the buyer. Implication of an
easement under Wheeldon v Burrows requires several conditions to apply.
i. unity of ownership and occupation – one person must own and
occupy the whole of a piece of land
ii. exercise of quasi-easements- original owner must have exercised
rights which would become easements but for the fact of common
ownership and occupation. As a person cannot have an easement
over his land, this is known as quasi-easement.
iii. Continuous and apparent – right must to some extent be obvious.
Right to receive light through windows will be less obvious and may
not qualify under Wheeldon v Burrows.
iv. Necessary to reasonable enjoyment of the land – right must render
use of the land more convenient.
v. Division of the land – above requirements are met, the quasi-
easements will become actual easements when the land is divided.
d. s62 LPA 1925 – means whereby tenants may acquire an easement over
land retained by their landlord. Wording of s62 LPA 1925 has the effect of
converting mere permissions into easements. s62 used in different ways:
i. where there is a diversity of occupation- two other requirements
must also be met:
i. permissions must be given to the occupier to use the
easement
ii. there must be a conveyance (including a lease) that is a
transfer of the legal title to the occupier.
Requirement of diversity of occupation means that s62 claims have
been applied primarily to tenants claiming rights over land retained
by the landlord. Wright v Macadam (1949) a tenant successfully
claimed an easement of storage in a garden shed on land retained
by the landlord as a result of s62. Landlord had given the tenant
permission to use the shed for storage purposes. Originally a
licence (permission) only. When lease renewed, there was a grant
or conveyance of a new lease, this conveyance converted the
licence into an easement.
ii. where there is no diversity of occupation – Wood v Waddington
(2015) now a further method of creating an easement under s62.
No diversity of ownership and occupation is required. An easement
can be created under s62 provided that the right is continuous and
apparent and the use must have been for the benefit of the land
conveyed.
3. Presumed grant or prescription – where a person can prove that for a
particular period (usually 20 years) he has exercised a right which has the
characteristics of an easement, be presumed to have an easement by
prescription. This will be deemed to be a legal easement despite the lack of
 deeds. If a person can show an acquisition of an easement by prescription, it
is presumed that some grant of a legal easement occurred in the past.
For prescription to occur, there must have been:
- continuous “user” (purported easement must have been used regularly) and
- user must have continued for the prescriptive period (20 years or more),
- the user must be by or on behalf of and against the fee simple. One freehold
owner must be claiming against another.
- must be a user as of right. It must have been exercised without force, secrecy
or permission. If permission has been given to use the particular right, there
can be no prescriptive right.
In Winterburn v Bennett (2016) sign of “Private car park. For the use of Club patrons
only” was sufficient to show that the landowners were not acquiescing in the acts of
trespass committed by customers and delivery drivers to a fish and chip shop.
Unable to show they had acquired the easement. Not necessary to show that they
had used force or committed acts of damage to gain entry – court of Appeal decided
that a landowner can prevent someone acquiring rights over land by clear signage
alone.

Three methods of prescription:

(a) at common law – it had to have been enjoyed since time immemorial (1189).
Adopted the rule that if user as of a right for 20 years or more is shown,
presumed that user has continued since 1189. At any time since 1189 the
easement could not have existed, the land was owned by one person, an
easement cannot be acquired by prescription at common law.
(b) under the doctrine of lost modern grant, the easement must have been used
for 20 years- the courts may then make a presumption that the easement was
granted, but that the deeds were lost.
(c) under the Prescription Act 1832, easement must have been used for at least
20 years. If 40 years can be shown, the right is deemed to be absolute and
indefeasible.
To claim an easement under doctrine of lost modern grant, 20-year period can be
any period, to claim an easement under the Prescription Act 1832, the 20-year
period must be “net before action”- 20 years immediately preceding the action.

Reservation of easements

Reservation of an easement occurs if an owner sells part of his land but retains the
right to use an easement over the land sold.

Easements reserved may be legal or equitable.

Absence of express reservation of the easement by deed, one can only be implied
by means of necessity or common intention.

Profits a prendre

A profit à prendre is a right to enter on to land of another person and take part of the
produce or soil. The owner of the profit does not need to have an estate in the land
itself.
Profits include mining rights, fishing rights, shooting rights, rights of grazing, and
rights to collect wood or dig for peat.

Profits can be acquired in similar ways to easements, cannot be acquired by

necessity or under the rule in Wheeldon v Burrows (1879). Prescription period under
the Prescription Act 1832 is usually 30 years.

Terminating easements

1. By statute

2. By release. This could be express release or implied release. To be an intentional

abandonment of the easement for there to be an implied release.

3. By unity of ownership and possession. If the dominant and servient tenements

come into the ownership and possession of the same person, any easement is
extinguished.

Positive and Restrictive Covenants

Restrictions placed on the owner – restrictive covenants.

Obligations imposed on a purchaser to do something and usually expend money –

positive covenants.

Commonly included in the transfer deed on a sale. They may also be created in an
express deed of covenant.

Test the wording of the covenant – the test is one of substance and not form.

Covenantors and covenantees

Person who gives the covenant is called the covenantor – has the burden of the
covenant as the covenant burdens the land.

Person who receives the covenant is the covenantee – has the benefit if the
covenant is breached.

Enforceability of covenants

Covenant is always enforceable between the original covenantor and original

covenantee because of the principle of privity of contract.

Land is sold, privity of contract no longer exists. A covenant can be enforced if:
- the benefit has passed to the purchaser of the benefiting land and
- the burden has passed to the purchaser of the burdened land.

The common law rules need to be applied. If it is found that the benefit and burden
do not pass at common law, the rules in equity need to be applied.
The benefit at common law

Will run if:

- the covenant touches and concerns the land of the covenantee, that is, the
covenant benefits the land rather than being personal in nature
- the original covenantee owned the legal estate in the land to be benefitted
when the covenant was made
- the original parties intended that the covenant should pass with the land
- the successor in title derives title from the original covenantee

Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board (1949) –
covenant to maintain the banks of a river, ”touched and concerned” the land,
intended to run with the land; at the time the covenant was made, the covenantee
held a legal estate in the land to be benefitted; and the successor in title derived his
title from the original covenantee. The benefit of the covenant was therefore
enforceable.

The burden at common law

General rule is that the burden of a covenant will not pass to subsequent purchasers.
Decided in Austerberry v Oldham Corporation (1885) and following in Rhone v
Stephens (1994)

Exceptions to the rule:

1. If there is a chain of indemnity covenants, whereby each successive purchase
undertakes to indemnify his immediate predecessor
2. Principle laid down in Halsall v Brizell (1957) that a person cannot take a
benefit under a deed without subscribing to the obligations under it.

It should be noted that both the benefit and the burden must pass with the land for
the covenants to be enforceable at common law.

The benefit in equity

For a person who is not the original covenantee to enforce a covenant in equity,
must show that:
- the covenant touches and concerns the land
- the benefit of the covenant was either:
o annexed to the land of the covenantee
o expressly assigned to the successor in title
o the land in question is part of a building scheme

1. Annexation – will be annexed to land if it can be shown that it was entered

into with the intention that it benefits the land. Usually apparent from the
words of the covenant. The covenant may state that the restriction is “for the
benefit of the retained land”. – Express annexation.
Must show that the covenant is for the benefit of the land, not only for the
owners in a personal capacity. Rogers v Hosegood (1900) a covenant entered
into by the purchaser of land “for the benefit of the covenantees their heirs
and assigns and others claiming under them to all or any of their lands
 adjoining or near to the burdened land” was held to be expressly annexed to
the land of the covenantees.
Annexation can arise by statute by virtue of s78 Law of Property Act 1925
(LPA 1925) which states that:
“ A covenant shall be deemed to be made with the covenantee and his
successors in title and the persons deriving title under him or them, and shall
have effect as if such successors and other persons were expressed.
2. Assignment with the land – successor in title to the covenantee can enforce
the covenant if he can show that the benefit of the covenant has been
assigned to him. There must be an unbroken chain of assignments from the
original covenantee to the current owner benefiting from the covenant. Broken
chain – covenant cannot be enforced.
3. Building scheme – applies where a new housing developments is being built.
Developer may impose mutually enforceable covenants in order to improve
the quality of life on the development. Impose a sort of “local law”
Elliston v Reacher (1908) court laid down four conditions to be met in order for
a building scheme to be effective.
- the claimants and defendants must have derived title from a common owner
- the owner must have set out the estate in lots and imposed the restrictions
prior to the sale consistent with some general scheme of development
- the owner must have intended that the restrictions were to be for the mutual
benefit of all purchasers of the various lots of land
- the claimants and defendants or their predecessors in title must have
purchased their property on the basis that the covenants were to be mutually
enforceable by the owners of the other lots within the scheme.

The burden in equity

Tulk v Moxhay (1848), case involving a restrictive covenant over Leicester Suquare
in London, a purchaser of the burdened land is bound by a covenant only if:
- the covenant is negative in nature, that is, it is a restrictive covenant.
- the burden of the covenant was intended to pass with the land – this will be
assumed unless the covenant indicates otherwise (s79 LPA 1925)
- there are two pieces of land, a dominant tenement and a servient tenement
- the covenant benefits the dominant tenement
- he has notice of the covenant. Where the land is unregistered, the restrictive
covenant must be protects by a Class D(ii) Land Charge. Where the land is
registered, covenant must be protected by notice. Covenant was created
before 1 January 1926, protection of such restrictive covenants is governed
by the doctrine of notice.
Only restrictive covenants can be enforced in equity.

Working through the law on enforceability of covenants

1. Decide whether the covenants in question are positive or restrictive.
2. Identify whether the ownership of the burdened land has changed.
3. Identify whether the ownership of the benefitting land has changed
4. Consider whether the benefit runs at common law, followed by a discussion of
whether the burden of the covenant runs at common law. Remember that
both the benefit and burden must run at common law for the covenant to be
enforceable.
 5. If the covenant does not run at common law, look to equity. Both the benefit
and burden must run in equity for the covenant to be enforceable.

Discharge of restrictive covenants

Restrictive covenants are a major bar to the development of land.

s84 LPA 1925 allows application to the Upper Tribunal (Lands Chamber) in order to
discharge such covenants either fully or partially in certain circumstances.

- The covenant is obsolete due to changes in the character of the property or

the neighbourhood, as in Chatsworth Estates Co v Fewell (1931) or other
circumstances
- Continued existence of the covenant would prevent reasonable use of the
land.
- The persons entitled to the benefit of the covenant have either expressly or
impliedly consented to its discharge as in Shaw v Applegate (1977)
- The discharge or modification of the covenant will not injure the person
entitled to the benefit of the restriction.
There are two additional methods of discharging a restrictive covenant:
- the owners of the land benefiting from the covenant can enter into a deed of
release or variation
- where there is common ownership and occupation (merger) of the land
benefiting from the covenant and the land burdened by the covenant, the
restrictive covenant will be discharged.

Registered Land

Steps towards comprehensive registration of title

Unregistered land

Subject to the older system of conveyancing, detailed investigation of title deeds and
searches of the land charges register must be made prior to completion

Registered land

Unregistered land is complex and is being replaced by a system of state guaranteed

registration of title (registered land) which is detailed in LRA 2002. Provides a
simpler method of conveyancing under which all land will be registered with the Land
Registry. Register entry will alert a potential buyer of the land to:
- what’s actually is being bought, including any beneficial rights over
neighbouring land
- any rights which third parties may have in the land

Important dates

1925
Various parts of England and Wales were designated as compulsory registration
areas.

1990

December 1990 all land in England and Wales was designated as falling within a
compulsory registration area. Does not mean that all land is registered- become
registered only on a disposition of the land. Either:

- a sale of the legal freehold

- creation or sale of the legal lease with more than seven years left to run.

1998

Since 1998 as well as sales, the following also trigger compulsory first registration:
- gifts
- assents by personal representatives
- court orders
- first legal mortgages of property

Governed by LRA 2002

2003

LRA 2002 came into effect in October 2002.

Likely that there will be pockets of unregistered land for some time to come.

Registration of Title

Land Registration Act 1925 (LRA 1925) – provided for a Central Land Registry and
various District Land Registries, where application for registration of title or a Land
Registry search may be made. LRA 2002 expands the role of the Land Registry.

The system of registration of title

Registered land is now governed by LRA 2002 and by the Land Registration Rules
2003.

Advantages of the system over that of unregistered land

- it removes the need for repeated examinations of title deeds upon every
dealing with land, as is necessary in unregistered land, reducing costs
- a complete record of the interest which exist in connection with a registered
title can easily be discovered
- an accurate plan for each parcel of registered land is available
- conveyancing process is made easier
- drafting is reduced to a mere form-filling exercise, which is both simpler and
quicker for many transactions
- the register establishes a record of proprietors of the land
 - compensation is payable if errors or mistakes are made by the Land Registry
as the system is state guaranteed.
Fundamental objective of LRA 2002 is a system of online conveyancing will result in
a complete and accurate reflection of the state of the title of land at any given time.
Title to land can then be investigated online with the minimum of additional enquiries
and inspections.

Underpinning principles of registration of title

Following three principles underpin the system of registration of title:

1. The mirror principle – Give certainty to the title to real estates. Register should
thus reflect, at any given time, the totality of estates and interests that exist in or
over a particular plot of land. Four kinds of interest in registered land – registered
estates, interests which should be protected by entry on the register, the
registered charge and interests which have overriding status. The first three of
these appear on the register. Overriding interests are not registrable, yet they bind
the world irrespective of notice; they can be seen as a crack in the mirror.
2. Curtain principle – basis of this principle is to keep certain interests off the
register. Occur where the purchases has no need to concern himself with
equitable interests behind a trust. Register screens the purchaser from information
that he does not need. Purchaser is protected against these interests even though
he is unaware of them by the principle of overreaching. The purchaser takes free
of equitable interests behind a trust provided that the purchase money is paid to at
least two trustees.
3. Insurance principle – register is deemed to give an absolutely correct reflection of
title, if a loss is suffered through mistake or error, the injured party should be
compensated. Land Registry deals with this by a system of rectification of the
register, alteration of the register and indemnity where loss has occurred. All part
of the state-guaranteed system of registration of title.

Contents of the register

1. Property register- description of the property by reference to the title plan.

Title plan is a large-scale Ordnance Survey map, showing the boundaries of
the property. States whether the land is freehold or leasehold and includes
details of any interests which benefit the registered land.
2. Proprietorship register – who owns the land and the class of title he has over
the land. Name and address of the registered proprietor and any restrictions
affecting his right to deal with the land. Restrictions can exist where there are
co-owners and the purchaser will be obliged to pay the money to at least two
trustees for overreaching to take place.
3. Charges register – all incumbrances or charges affecting the property.
Restrictive covenants which burden the registered land or easements which
burden the land.
Each piece of registered land will have its own title number. Land and charge
certificates are no longer issued. A title information document is issued which is a
copy of the register and a copy of the title plan.

Classes of title
Seven possible classes or grades of title that the Land Registry can give on
registration of title:

1) Freehold titles
a. Absolute title – fee simple absolute in possession. Highest form of title.
b. Qualified title – similar to absolute title except that the property is held
subject to some defect or right which is specified in the register.
c. Possessory title – granted to a claimant by way of adverse possession
the claimant is a squatter who has occupied the land for a certain
length of time.
2) Leasehold titles
a. Absolute leasehold – granted where the freehold out of which it is
granted is already registered at the Land Registry. Most secure types
of leasehold title.
b. Good leasehold – some doubt about the lessor’s (landlord’s) right to
grant the lease. Land Registry has not been able to check the freehold
title, this lesser grade of title. Arise where the landlord cannot be
traced, such as with long leases of 999 years where ground rent is
minimal and the landlord is unknown.
c. Possessory leasehold – like absolute leasehold but is subject to some
other right existing at the time of first registration.
d. Qualified leasehold – similar to qualified freehold titles and is extremely
rare.

Current registered proprietor of freehold land may be given absolute title. Buyer will
be bound only by the registered interests and overriding interests. Buyer must be a
purchaser for valuable consideration – excludes marriage consideration and nominal
consideration (s132(1) LRA 2002).

Buyer from someone with absolute leasehold title will be bound not only by
registered interests but also by his landlord’s rights under the lease and any
covenants binding the freehold.

s62 LRA 2002, provision is made for the upgrading of the title where the original title
granted less than absolute title.

Types of interest in registered land

Four types of interest in registered land:

- registrable interest or estate
- an interest protected by entry on the register
- an interest which is overriding
- a registered charge

Registrable interests

Registered via substantive registration under their own title numbers. s2 LRA 2002
provides that following legal estates and interests are capable of substantive
registration:
- fee simple absolute in possession
 - term of years absolute with at least seven years to run
- rentcharges
- franchises
- profits à prendre in gross if in perpetuity or for a term with more than seven
years remaining.

After completion of sale, must apply to be registered as the new proprietor and will
replace the previous proprietor on the register. Prior to sale, the land was
unregistered, the sale is completed using unregistered land principles but the buyer
must apply to the Land Registry within two months of the conveyance to be
registered as proprietor (ss4-8 LRA 2002). First registration converts the land to
registered land. LRA 2002 extends the number of situations (triggers) where the
obligation to apply for first registration arises.

All subsequent owners of registered land must apply to be registered as new

proprietors, but there is no time limit relating to the application.

Interests protected by entry on the register

Entered on the register and affect the ability of the registered proprietor to sell. LRA
1925 matters such as easements, mortgages and restrictive covenants usually
appeared as notices on the charges register, other matters appeared as restrictions,
cautions or inhibitions on the proprietorship register. Restriction alerted the buyer to
the fact the sale must occur in a restricted manner. Cautions were usually registered
where there was a dispute over whether a particular right existed. Inhibitions could
prevent any transaction relating to land. All binding minor interests should be
apparent from the pre-completion search of the Land Register.

LRA 2002, two forms of protection by entry on the register- the notice and restriction.
Cover the interests that were previously protected by way of cautions or inhibitions -
“minor interest” isn’t used in LRA 2002.

Notice

s32 LRA 2002 defines a notice as an entry in the register in respect of the burden of
an interest affecting a registered estate or charge. s33 gives a list of interests which
cannot be protected by way of a notice, including an interest under a trust of land, a
lease for not more than three years and a restrictive covenant between a lessor and
lessee. Two different types of notice:

1. Agreed notice – entered on the register with the agreement or on the

application of the registered proprietor.
2. Unilateral notice- entered without the agreement or consent of the registered
proprietor. Registered proprietor will be informed of the entry and can apply to
cancel it.

Interests protected by notice include equitable easements, restrictive covenants over

freehold land and equitable mortgages.

Restriction
s40 LRA 2002 defines a restriction as an entry in the register regulating the
circumstances in which a disposition of a registered estate or charge may be the
subject of an entry in the register.

Can be entered with or without the consent of the registered proprietor and where
the restriction is entered without the registered proprietor’s consent, he must be
informed of it.

ss42 (2) and 46(2) LRA 2002 provide that the restriction is not intended as an
alternative to the notice and it must not be used to protect an interest that should be
protected by way of a notice.

Example – use of a restriction is where a beneficial interest under a trust is held as a

tenancy in common. purpose of such a restriction is to ensure that money is paid to
at least two trustees to enable overreaching.

Interests which are overriding

Not registered but they bind a buyer of land.

LRA 2002 distinguishes between interests which override registered dispositions

(Sch 3) and those which override first registrations (Sch 1). Substantial amount of
overlap between the two Schedules. some significant differences.

Sch 3: Interests which override registered dispositions, the land concerned is already
registered

Paras 1-3 Sch LRA 2002

(1) Short leases

Para 1 Sch 3: a lease granted for a term not exceeding seven years from the date of
the grant overrides registered dispositions.

Some exceptions. Following leases, even if for a term of seven years or less are
subject to compulsory registration:
- leases which take effect in possession more than three months after the date
of the lease
- certain leases under the Housing Act 1985
- a lease the grant of which constitutes a registrable disposition – means that a
lease which ought to be substantively registered cannot be an overriding
interest.

Leases for more than three years do not exceed seven years can be protects on the
register by notice. Protection is voluntary and if protected in this way, cease to be
overriding. In line with the Land Registry’s policy of putting as many interests as
possible on the register. Leases for three years or less cannot be protected on the
register (always overriding).

(2) Persons in actual occupation

Para 2 Sch 3: the rights of a person in actual occupation of the land will override
registered dispositions.

Person claiming such an overriding interest must:

- have a right or interest in the land
- be in actual occupation

Following are excluded:

- an interest of a person of whom enquiry was made and such interest was not
disclosed when he could reasonably have disclosed it
- if the interest is not obvious on a careful inspection of the land.

Protect the purchaser of registered lad who inspects the land or makes enquiries of
persons on the land and such persons deny any interest in the land. Purchaser takes
the land free of such interests.

Determining whether a person is in actual occupation (Williams & Glyn’s Bank Ltd v
Boland (1980). Person does not cease to be in occupation because he is temporarily
absent. Chhokar v Chhokare (1984) actual occupation was retained while the
beneficiary was in hospital. An intention to return, and belongings were kept on the
premises- sufficient for actual occupation.

Regards 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 the registration of the
new proprietor (Abbey National Building Society v Cann (1990)).

Link Lending Ltd v Hussein (2010) was no single test for determining whether there
was a person in actual occupation. All factors could be taken into account:
- the degree of permanence and continuity of presence of the person claiming
actual occupation
- the intention of the parties
- the reasons for the absence
- the length of the absence
- other personal circumstances.

This case, respondent had been in psychiatric care and was not allowed to live in the
house, she still considered the house to be her home and made supervised visits to
the property every week.

Court held that there was sufficient evidence of actual occupation

(3) Easements arising from implied grant or reservation or by prescription

para 3 Sch 3: 13 October 2006 an unregistered legal easement will override a
registered disposition if it is:
- obvious from a reasonable inspection of the land
- known to the person to whom the disposition is made
- exercised within the year before the disposition
- registered under the Commons Registration Act 1965
Only easements capable of overriding a registered disposition are those easements
arising from implied grant or reservation or by prescription. Easements which are
expressly granted have to be completed by registration in order to be legal.

Sch 1: interests which override first registration the land concerned was originally
unregistered

Apply where the land being sold was unregistered and is now subject to compulsory
registration under LRA 2002.

Sch 1 LRA 2002 – on first registration, the first proprietor holds the estate subject to
interests which override first registration. Rights which bind the proprietor even
though not entered on the register.

Differ to Sch 3. Overriding interests are listed in paras 1-3 Sch 1 LRA 2002.

(1) Short leases

para 1 Sch 1: a lease granted for a term not exceeding seven years from the date of
the grant overrides first registration.

Some exceptions even when created for seven years or less are subject to
compulsory registration:
- leases which take effect in possession more than three months after the date
of the lease
- certain leases under the Housing Act 1985

(2) Persons in actual occupation

Para 2 Sch 1: rights of a person in actual occupation of the land will override first
registration.

Person claiming such an overriding interest must:

- have a right or interest in the land
- be in actual occupation

(3) Easements

Applies to all easements: express by deed, implied and those by prescription.

Para 3 Sch 1: Legal easements can override first registration.

An easement must:
- be equivalent to a legal estate
- have been created by deed, implied or by prescription.

Easements created by deed are revealed on first registration. Will be noted in the
register. Once noted – cease to be overriding.

Legal easements created impliedly or by prescription should be disclosed on first

registration where the applicant for first registration knows of them. Then be noted on
the register and cease to be overriding interests.
Implied and prescriptive easements not protected on the register may be lost on a
subsequent sale and registration of the property.

Equitable easements cannot override first registration.

Registered charge

Legal mortgages are protected by a separate form of registration: registration of a

charge in registered land.

Unregistered Land

Rights and interests in unregistered land are governed by following principles:

- legal rights are protected because in unregistered land “legal rights bind the
world”
- equitable rights are categorised as either:
o commercial rights, protected by registration under the Land Charges
Act 1972
o family rights, protected by overreaching
o residual rights protected by the doctrine of notice.

The doctrine of notice

Buyer will be bound by such rights.

Equitable rights depend on the doctrine of notice. Notice applies only to a limited
number of equitable interests. Purchase bound by such rights – bona fide purchaser
for value with notice of the interest. Purchase must have purchased the land for
value with:
- actual notice
- constructive notice
- imputed notice

Relevant notice depends on whether the equitable right may be categorised as

commercial, family or residual.

Legal rights

All legal rights, except leases of three years’ duration or less, must be created by
deed (s52 Law of Property Act 1925 (LPA 1925)).

Equitable rights

Determined by the doctrine of notice, if the buyer or his agent knows or ought to
know of the right, he will be bound by it,

The basic doctrine of notice no longer applies to unregistered land – provision by

statute to protect these equitable rights by a system of registration of charges.
Commercial rights

Land Charges Act 1972 (LCA 1972) most important commercial rights are:
- puisne mortgages – Class C(i)
- equitable mortgages – Class C(iii)
- equitable leases and estate contracts – Class C(iv)
- restrictive covenants created on or after 1 January 1926 – Class D(ii)
- equitable easements created on or after 1 January 1926 – Class D(iii)
- family home rights under the Family Law Act 1996 – Class F

Commercial rights should be registered as land charges against the name of the
estate owner as it appears on the title deeds.

Prospective buyer searches the land charges register prior to conveyance. Search
will be against the names of previous estate owners back to a good root of title.
Constitute the first set of titles deeds which are more than 15 years old. The buyer
can find out which rights will be binding upon him. If a commercial right is not
registered the buyer is deemed to have no notice of it and will be able to take free of
the right.

Buyers are bound by any correctly registered land charge. Treated as if they had
actual notice- if they fail to carry out the appropriate searches (ss198 and 199 LPA
1925).

Land charge is not registered in the land charges register, a buyer takes free from it,
even if he actually knew of the charge (s4 LCA 1972).

Family rights

Mechanism of overreaching for family equitable rights. Upon overreaching, a

beneficiary’s interest is swept off the land and put into the proceeds of sale.

Residual rights

Relatively unimportant. Certain rights (easements and restrictive covenants created

prior to the Land Cahrges Act 1925 (1 Jan 1926) cannot be registered nor can they
be overreached.

Protecting Co-ownership Interests and Matrimonial Rights

Protecting co-ownership interests

There is co-ownership in land, will create a trust of land of the equitable interests.

Method of protecting such interests against third parties, depend on whether we are
dealing with unregistered or registered land.

Unregistered land
Equitable interests arising under constructive or resulting trusts are not registrable as
land charges.

Sole owners cannot overreach equitable interests. Kingsnorth Trust Ltd v Tizard
(1986) court held that the wife’s occupation was sufficiently obvious to fic the
surveyor with notice of the fact that she was in occupation and therefore was a
person who might have an interest in the property.

Registered land

Protected by an entry on the register by a restriction. Not registered but the holder of
the interest is in actual occupation, the interest will be an interest capable of being
overriding under para 2 Sch 3 Land Registration Act 2002 (LRA 2002)

Protection for spouses

Land is registered or unregistered – anyone who meets the required conditions for
acquiring an equitable interest will be granted it. Lawful spouses only have additional
protections.

Main protection under s37 Matrimonial Proceedings and Property Act 1970 –
provides that either spouse who makes a substantial contribution in money or
money’s worth to the improvement of real (or personal) property, treated as having a
share, subject to any agreement between them to the contrary express or implied.

Second protection – legislation dealing with matrimonial breakdown. s25 Matrimonial

Causes Act 1973 provides the court with wide discretionary powers to order a
distribution of the spouses’ property. The court can look at the contributions which
each party has made or is likely to make.

Part IV Family Law Act 1996 (FLA 1996) gives extensive rights of occupation in the
matrimonial home – to a spouse who does not possess a legal interest in the house
concerned. Under ss30 and 31 FLA 1996 (formerly Matrimonial Homes Act 1983)
matrimonial home rights by way of a Class F land charge in unregistered land, and
by notice in the case of registered land. Applies whether or not spouse can claim any
equitable interest.

Protection for Civil Partners

Civil Partnership Act 2004 (CPA 2004) – greater recognition for same-sex partners
by treating them in the same way as a married couple. CPA 2004 excludes
heterosexual couples from registering a civil partnership. In the event of a dissolution
of a civil partnership, s66 provides either civil partner may apply to the court for a
declaration as to the title or apply for an order for the possession of the property.
Court is entitled to make such order in respect of the property as it thinks fit,
including an order for sale. s65 CPA 2004 recognises contributions to the
improvement of the property if substantial and in money or money’s worth.