1.

Lord Link:

S.28, Land Registration Act 20021 establishes the first in time rule, which means

the priority of interest is determined on date of creation and rights that were

created first are going to bind the later disponees. Since s.28 is subject to

s.29(1), we need to consider whether the disposition is registrable and if it is

made for valuable consideration upon completion. In particular, the disposition

between Sir Sunny Parrot and Lady Whisper is registrable because it is a transfer

of estate under s.27(2)(a). In addition, considering the Manor Estate was

purchased for a large sum of money of over £10 million and assuming that there

is negotiation between Sir Sunny and Lady Whisper from September until

October. It is reasonable to assume there is a purchase price which is not

marriage consideration or nominal consideration in money (s.132). We are not

told if the disposition is completed by registration, but we assume Sir Sunny has

completed disposition by registration.

Lord Link has an equitable interest behind a resulting trust in the Chapperton

Manor Estate by virtue of his contribution to the purchase price. His interest is

also not overreached by Sir Sunny because no monies or money’s worth has been

paid to him as a second trustees. Under Schedule 3, LRA 2002, a beneficial

equitable interest under a trust is not specifically included in the list of overriding

interest. Lord Link cannot enter his interest by way of notice because it is an

interest under a trust of land, which is a specifically excluded interest under

s.33(a)(i), LRA 2002. Therefore, he does not fall under s.29(2)(a)(i), which

contains protected prioritised interest as a registered charge or the subject of a

notice in the register.

However, it is, a proprietary interest and is therefore a minor interest, which Lord

Link could have protected by an entry of restriction in the proprietorship register

of the title to which it relates (s.40, s.43 of LRA 2002). The restriction could have

prohibited a dealing with the registered estate unless the purchaser obtained a

1
Land Registration Act 2002
 receipt from two trustees. Based on the facts, we do not know if he has done that

and if Sir Sunny Parrot sees this on the register, he may think of overreaching it

by paying the purchase price to two or more trustee (s.2(1)(ii) and 27(2) LPA

19252). Assuming that Lord Link is protected by way of restriction, this would not

have given him complete protection against Sir Sunny Parrot but would have

prevented the purchaser from purchasing the estate without dealing with Lord

Link as a second trustee.

Even if Lord Link did not enter a restriction, his interest can still be protected and

has enforceability due to s.29(2)(ii), which states that if an interest falls within

any paragraphs of Schedule 3, then its priority can still be protected. Under LRA

2002, Schedule 3, para 2, an interest belonging to a person in actual occupation

of land at the time of disposition is protected as an overriding interest. The

requirements to fall under para 2 includes: qualifying interest, actual occupation

(as a fact) without exception in (a) to (d). Qualifying interest must be a

proprietary interest (Boland3) (Rosset4). In Boland, interest under a trust is

deemed as a qualifying interest which also applies to Lord Link. In addition, he

must also establish actual occupation at the time of the completion of the

disposition (Schedule 3, para 2 and Cook v The Mortgage Business5). Actual

occupation requires the physical presence of the person claiming the interest on

the land which has a degree of permanence and continuity (Cann6). In this case,

Lord Link has been living in Old Brewhouse building on the estate for 12 years

since 2010. This indicates a degree of permanence. Furthermore, in Chhokar 7, a

wife was held to remain in actual occupation during the period she was in hospital

having a baby. This shows that a temporary absence may not destroy the

2
Law of Property Act 1925
3
William & Glyn’s Bank Ltd v Boland (1981) A.C 487
4
Lloyd’s Bank v Rosset (1991) 1 A.C 107
5
Cook v The Mortgage Business Plc (2012) 5 EG 82
6
Abbey National Building Society v Cann (1991) 1 AC 56
7
Chhokar v Chhokar (1984) FLR 313
 absentee’s continuing to be in actual occupation. Therefore, it is immaterial

whether Lord Link was there when the deal was completed.

In advising for Sir Sunny Parrot, we need to examine whether he is an exception

to counter Lord Link. Under para 2(c)(i), Lord Link’s occupation needs to not be

obvious on a careful inspection (Thomas v Clydesdale Bank8). According to

Thomas v Clydesdale Bank, there must be visible signs of occupation, although,

knowledge of occupation does not make the occupation obvious. In this case,

Lord Link has been living in the Old Brewhouse for 12 years, this indicates that

his physicals possessions must have been present. However, we do not know how

carefully the inspection was, because Lady Whisper waited outside with no

information on the inspection carried out by Sir Sunny Parrot. Objectively

speaking, on a reasonably careful inspection, obvious visible signs of Lord Link’s

belongings should have been discoverable and be inquired further. Para 2 (c)(ii)

sets out the additional requirement that the person to whom the disposition was

made must have been unaware of the interest, in another words, have no actual

knowledge of Lord Links’ occupation. Although this is not made clear in the

question, it is quite possible that Sir Sunny Parrot did know of Lord Link’s

interest. This is because Lady Whisper is physically seen to not have access to the

Old Brewhouse, along with the facts that she said she knows where ‘they’ might

keep a key, which clearly indicates a third person. These events could be

deducted by Sir Sunny Parrot that Lady Whisper is not the sole owner of the

estate, and a third party’s interest is in fact, present. If these are the case, then

Sir Sunny Parrot would not be able to rely on this exception and Lord Link’s

interest is enforceable against Sir Sunny, since it is an interest that overrides

registered dispositions.

Elfie:

8
Thomas v Clydesdale Bank (2010) EWHC 2755
 Elfie must satisfy all the requirements set above like Lord Link. Firstly, Elfie’s

interest is registrable under the Land Charges Act 19729 because an option to

purchase is classified as an estate contract under s.2(4)(iv) of LCA 1972. If Elfie’s

interest was a legal interest, it would bind successors in title automatically. if it is

an equitable interest, it must be registered as the appropriate land charge under

the LCA 1972. However, the option to purchase is not registered by Elfie’s

solicitor as an estate contract under the LCA 1972 so purchaser (Sir Sunny) will

not be bound by her interest because he is a purchaser for valuable consideration

(as established above) (s.28(1) and 29(1) LRA 2002) regardless of any notice

they may have of the interest (De Lusignan v Johnson10). At this point, Elfie’s

disposition is void due to incompletion by registration, so may not be enforceable

against Sir Sunny.

Nevertheless, the purchaser will be bound by the estate contract if this

constitutes an overriding interest, i.e., if Elfie is in actual occupation of the land

and has an interest in the land (Para 2, Schedule 3 LRA 2002). To qualify as an

overriding interest, Elfie must meet the requirements to fall under para 2. Firstly,

Webb v Pollmount11 establishes that an option to purchase a freehold is

considered a qualified interest. This means Elfie’s option to purchase the 100

acres of old pastureland on the estate is a qualified interest. Secondly, there must

be actual occupation as a fact by Elfie. The way that a person occupy can vary

according to the nature of their interest. Considering the nature of Elfie’s estate

contract, it is purchased for the purpose of rewilding the countryside, not

necessarily for physical occupation. It might be possible to argue that her

absence is immaterial. In Lloyd’s Bank v Rosset12, builder’s renovating a property

may prove actual occupation of that property. This establishes that actual

occupation can be proved through occupation by an agent on your behalf. In this

9
Land Charges Act 1972
10
De Lusignan v Johnson (1973) 230 EG 499
11
Webb v Pollmount (1966) Ch 584
12
Lloyd’s Bank v Rosset (1991) 1 A.C 107
 case, Elfie employed Yoshi as an agent who specialised in rewilding projects to

carry out work on her behalf. This could be argued by Elfie as actual occupation.

In advising Sir Sunny, we need to examine whether he is an exception to counter

Elfie. Elfie’s occupation must not be obvious, and Sir Sunny must not have actual

knowledge of the interest (Para 2(c), Schedule 3). On the facts, there is nothing

to indicate that Elfie’ occupation is obvious. There is also no degree of

permanence and continuity because her occupation by agent has only been 2

months. Furthermore, para 2(b) states that the if beneficiary of the estate

contract did not disclose the interest of the purchaser on a reasonable enquiry

then the purchaser will not be bound. In this case, Sir Sunny asked Yoshi about

their work, however, Yoshi did not disclose Elfie’s interest upon such enquiry. This

is a subjective area and will depends on the court’s decision whether such enquiry

is reasonable enough. Even if it is deemed unreasonable, Elfie’s interest will still

be void due to occupation is not obvious on careful inspection.

Additionally, there is a strong argument today to claim that where a purchaser

takes title to land expressly subject to the rights of another, this will give rise to a

constructive trust or such rights may be enforceable under the Contracts (Rights

of Third Parties) Act 1999. In Lloyd v Dugdale13, the court establishes that a

constructive will only arise if the court is satisfied that the conscience of the

claimant is sufficiently affected that it would be unconscionable to allow him to

rely on his strict legal rights. This means depends on the court’s decision, Elfie’s

interest can still prevail in the argument for constructive trusts.

2. Lord Link:

In the case of unregistered land, Lord Link still has an equitable interest arising

under a trust of land because he contributed to the purchase price. Lord Link is

only a beneficial owner and not a trustee since the property is legally owned by

Lady Whisper. Under s.2(3)(ii) Law of Property Act 1972, beneficial interest under

13
Lloyd v Dugdale (2001) EWCA Civ 1754
 a trust is capable of overreached. Boland establishes the principle that in order

for overreaching to be successfully, payment of monies is required to at least 2

trustees (also in s.2(2) and s.27(2) LPA 1925). So, Lord Link’s interest has not

been overreached due to no payment has been made to him in exchange for the

trust asset. However, equitable interest arising under a trust cannot be registered

because there is no category mentioned this in s.2 of LCA 1972. Lord Link can

still prove his interest under the doctrine of notice. Equitable interests would only

bind a person if he was not a bona fide purchaser of a legal estate for value

without notice. So, Sir Sunny needs to prove he is Equity’s Darling.

The burden to prove Equity’s Darling is on the purchaser to be protected from

third party interests (Pilcher v Rawlins14). In this case, Sir Sunny, who is a

purchaser if proved to satisfy all 5 requirements to be Equity’s Darling then he is

not bound or legally bind by interest from Lord Link.

Firstly, we can assume Sir Sunny is acting in good faith by purchasing the fee

simple or the legal estate. Secondly, Sir Sunny is seen to purchase the estate

without an operation of law. Assuming that he is a purchaser for valuable

consideration and the Chapperton Manor Estate is a legal estate. At this point, Sir

Sunny does not have actual notice of any rights. However, he may have

constructive notice which is knowledge of all things he could have acquired actual

notice of, had he made those enquiries and inspections which he should

reasonably to have done. According to s. 23 LPA 1969, he needs to trace back 15

years to find out about the root of title (s.199 LPA 1925), even then he would not

have found out about Lord Link because his name is not registered, and Lady

Whisper is the sole legal owner. On the facts, Sir Sunny is said to have looked

inside the Old Brewhouse and the fact that Lady Whisper did not have access it,

so it can be argued that Sir Sunny should have inquired her about any third

parties interests due to Lord Link’s possession should have been visible in the Old

Brewhouse and if Lady Whisper was the sole occupier to the estate, she should

14
Pilcher v Rawlins (1872) Ch App 259
 have had full access to all places on the land. Furthermore, Hunt v Luck15

establishes that there must be suitable enquiries of any person discovered in

occupation. On the day of inspection, Lord Link is away so it might be sensible to

say that Sir Sunny as a prudent purchaser might not have notice because the

third party was not presence, which indicates no suspicion for him to inquire

further. If Sir Sunny is deemed to have constructive notice, then Lord Link’s

equitable interest will bind him. However, if not, Sir Sunny could take the estate

free from Lord Link’s equitable interest due to the fact that he’d be Equity’s

Darling.

Elfie:

Elfie also has an equitable interest but not under a trust, instead it arises under

an estate contract (s.1(3) LPA 1925). Firstly, Elfie’s interest cannot be

overreached because s.2(3)(iv) LPA 1925 states that options to purchase are not

capable of overreached. Also, her solicitors failed to register her interest as land

charge under LCA 1972 as class C(iv). If the land charge is not entered into the

land register, the estate contract will bind anyone, except a purchaser of a legal

estate for money, or money’s worth (s.4(6) LCA). In this case, assuming that Sir

Sunny is purchasing the estate for value or money, Elfie’s interest will not bind

him.

3. In registered conveyancing, the fundamental principle is that the purchaser is

bound by everything on the register, which provides a mirror of the title and all

the interests affecting the land (Law Commission No 27116). However, as seen in

(1), there is a crack in the mirror principle, as stated by Peter Gibson LJ17, one

cannot rely on the mirror principle entirely. This is because of the category of

overriding interests found in Schedule 3, LRA 2002, as argued above for Lord

Link’s interest. The original rationale for such interests that bind purchasers,

15
Hunt v Luck (1902) 1 Ch 428
16
Law Commission, Land Registration for the 21st Century: A Conveyancing Revolution (2001), Law Com.
No.271, HC Paper No.114, para.1.5
17
Overseas Investments Ltd v Simcobuild Construction Ltd (1995) 70 P CR 322 at 327
 despite not registered is because it is unreasonable to expect all encumbrancers

to register their rights, particularly where those rights arise informally, in this

case they will need to use their occupation as the only necessary protection (Law

Commission No. 25418). However, it is argued by academics that overriding

interests are flaws upon the registered system because it is unfair for purchasers

to buy land and be bound by unregistered interests that are not found on the

register. Despite the controversy, overriding interests already existed under the

LRA 1925 which later, the LRA 2002 modified and reduced these interests as an

attempt to limit its scope.

One of the requirements to prove overriding interest is whether the person

claiming that interest is in actual occupation. Because there is a lack of

comprehensive statutory definition of the principles of actual occupation, it

creates many debates and interpretations in courts. Academics like Hayton19 have

distinguished two approaches being Constitutionalist and Absolutist Approach.

The court adopts the constitutionalist approach in Rosset, this nuanced approach

putting the burden to make reasonable inquiries on the purchaser. Absolutist such

as Bevan20 argued that this subjective approach overextends the lacunae in the

statutory language since it rests on ‘shaky foundations stemming from landlord

and tenant law rather than rooted in principles of land registration’. Such

approach appears to be unfair for purchaser, such as Sir Sunny since they cannot

rely on the register alone but must carry the burden to reasonably inspect and

enquire further. Nevertheless, overriding interests can be justified by ‘reference

to some stronger legal, social or economic need’21. In particular, it can protect

rights that by nature, would be difficult to protect in practice. This is the case of

18
Law Commission, Land Registration for the 21st Century: A Consultative Document (1998), Law Com. No.254,
Cm.4027, para.5.61
19
Hayton D., Registered Land (3rd edn, Sweet & Maxwell Ltd 1981)
20
Bevan, ‘Overriding and over-extended? Actual occupation: a call to orthodoxy’ [2016] Conv 104
21
Dixon, "The reform of property law and the Land Registration Act 2002: a risk assessment" [2003] 67 Conv.
136, 138; see also on the issue of the policy of protection of "home" in property law, amongst others: L. Fox,
"The meaning of home: a chimerical concept or a legal challenge?" (2002) 29 J. Law & Soc. 580; and for a
critical account see: C. Bevan, "Challenging the Concept of Home in Modern Property Law post-Stack and
Kernott" in Warren Barr (ed.), Modern Studies in Property Law Vol.8 (Oxford: Hart Publishing, 2014), Ch.11.
 Baker v Craggs22, where the sale of a farm was completed by Mr. Craggs without

reserving a right of way, in which the registration of his title to the land was

delayed. During the period of delay, the vendors sold second part of the farm to

Baker with a right of way on Mr. Craggs’ land without his consent. Baker’s title

includes the right of way which is registered before Mr. Cragg’s title. If the mirror

principle was to be applied strictly, it would have given priority to the legal

easement over the sale of land. However, Mr. Craggs was proven to be in actual

occupation and thus able to claim an overriding interest over the grant of an

easement. This example shows how overriding interest can promote fairness and

provide equity for weaker parties. Therefore, the court must strike a balance

between overriding interest and the correct applicability of the mirror principle to

match the ultimate objective of the registration reforms.

In regards of (2), the concept of overreaching is criticised by Gwilym Owen23 due

to its arbitrary nature. He exampled the opposite cases of Flagg and Boland to

argue that it is unfair to beneficiaries who are having their rights to land

converted to money without any control. In this case, if Lord Link’s interest was

to be put as an entry of restriction on the register, this could be harshly

overreached by Sir Sunny by paying monies to both him and Lady Whisper, even

though, he had been in actual occupation of the property. The Law Commission in

Report No. 18824 attempts to prevent this issue by proposing that no beneficiary

of full age and in occupation could be overreached without their consent.

However, this proposal is not built into the legislation and therefore, the position

of a purchaser appears to remain stronger than the beneficiaries.

22
Baker v Craggs (2018) EWCA Civ 112
23
Cahill, D., & Owen, J. (2017). Overreaching- Getting the Right Balance. Conveyancer and Property Lawyer,
81(1), 26-44.
24
Law Commission, Transfer of Land, Overreaching: Beneficiaries In Occupation (1989), Law Com. No.188