What does the numerus clausus mean in land law?
- Means there is a ‘closed list’ of rights associated with property, the courts only recognise a certain number of rights as having a property nature
- List of property rights contained in s1 Law of Property Act 1925
What does part 2 of the Land Registration Act 2002 deal with?
First Time Registration:
* s3: Voluntary registration
* s4: Compulsory registration, this has to be done where land is transferred to another or deed is granted
What is the difference between absolute, qualified and possessory title?
S9 Land Registration Act 2002
* Absolute: A person has all necessary documents to prove they are the title holder of the land
* Qualified: If title has been established only for a limited time or subject to reservations that cannot be disregarded
* Possessory: When a person cannot be registered in any other class due to lack of documentation, but is in actual possession or receipt of the rents
What are the powers given to an owner by virtue of s23 and s24
- S23: Owner has the power to make a disposition of any kind permitted by the law
- S24: Person is entitled to exercise this power if they are the registered proprietor or are entitled to be registered
What are the rules on priority and dispositions?
- S27: Sets out that dispositions that are required to be registered
- S28: Basic rule of priority, except provided by s29 and 30 priority of an interest is not affected by a disposition (first in time)
- S29: If a registered disposition is made for valuable consideration it will take priority unless under 29(2) the earlier interest is the subject of a notice or capable of being an overriding interest under Sch 3
What are the overriding interests provided in schedule 3?
Schedule 3
* Para 1: a lease not exceeding 7 years does not need registration
* Para 2: Actual Occupation
* Para 3: Easements and Profits a Prendre
When will actual occupation not be an overriding interest?
(b) where upon inquiry there was a failure to disclose the right even though they could have
(c)(i) the right would not have been obvious upon a reasonably careful inspection of the land at the time of disposition, and
(c)(ii) of which to whom the disposition is made does not have actual knowledge at the time
What is actual occupation under the case law?
Williams & Glyn’s Bank v Boland
Actual occupation is ordinary plain English, there must be some physical presence on the land
What does and does not amount to actual occupation under the law
- Lloyds Bank v Rosset: Presence of builders / agents and work on the house is actual occupation
- Abbey National BS v Cann: Boxes and carpets placed down are not enough, there must be a degree of permanence
- Hypo-Mortgage Services v Robinson: Children cannot claim actual occupation, they are only shadows of their parents
What questions did Link Lending ltd v Bustard set out as important for actual occupation?
- The degree of permanence and presence of the person
- The intentions of that person
- Length of absence and reason for it
- Nature of the property
- Personal circumstances of the person
What equitable rules on dispositions and registration exist?
- Mascall v Mascall: Where one party has done all that is possible on their side to make a transfer effective, the person will hold the property on trust in equity
- Walsh v Lonsdale: Held that where the relevant documents are not present, an equitable version of the right can be created (e.g. equitable lease arose in this case)
How might a right to property arise under a Binion v Evans constructive trust?
Binions v Evans: Where a third party takes the land subject to an interest already held by B, a constructive trust will be imposed on them and they cannot go back on this promise
- Ashburn v Anstalt: Must have undertaken a new obligation, fact that lower price has been given because of the right could show they are subject to it
- Chaudhary v Yavuz: Must be a clear undertaking to respect existing rights so that a duty is put on them
