Land Law

‘On 13 October 2003 the Land Registration Act 2002 and Land Registration Rules 2003 came into force. They have completely replaced the law for land registration. Together, the new Act and Rules govern the role and practice of Land Registry.
The Land it provides a framework for the development of electronic conveyancing Registration Act 2002 achieves the following:
it makes the register a more complete picture of a title to land - showing more fully the rights and interests affecting it;
it simplifies and modernises land registration law and is the first major overhaul of the land registration system for 75 years;
Major changes to the law and practice affect all those involved with registered land. In particular:
shorter leases must now be registered;
voluntary registration is available for new types of interest in land;
changes affect the protection of third party interests; the law of adverse possession (squatters rights) has been reformed.’(1)
Overriding interests
Overriding interests were created by the Land Registration Act 1925 (LRA 1925). They are interests that are not protected on the land register but which nevertheless bind any person who acquires an interest in registered land, either on first registration or where there has been a registrable disposition of a registered estate that has been completed by registration. The LRA 1925 was repealed by the Land Registration Act 2002 (LRA 2002) which now refers to overriding interests as: “Unregistered interests which override first registration”, which are dealt with under Schedule 1 to the LRA 2002, and “Unregistered interests which override a registered disposition”, which are dealt with under Schedule 3 to the LRA 2002.(2)
The class interests that have overriding status under the LRA 2002 are more restricted than under the LRA 1925, but include short leases, certain rights of people in actual occupation and unregistered legal easements.
In Registered Conveyancing, when a person buys a legal Estate In Land which has Registered Title, he/she will not be bound by any third-party interests in that land, unless they are noted on the register, or are deemed to be overriding. Others were made overriding to relieve the administrative burden on the LandRegistry, which is a less creditable reason in these days of computerization. Some interests are overriding because it would be unreasonable to expect their owners to register them, particularly where they are obvious.
Under the Land Registration Act (1925) the list of accepted overriding interests was defined in s.70(1). This provision has now been repealed, and replaced with Schedules 1 and 3 of the Land Registration Act2002. Schedule 1 applies to interests that are overriding when the land is registered for the first time, while schedule 3 applies when the land is subsequently sold. Overriding interests in Sch. 3 are narrower in scope than those in Sch. 1, and both are narrower in scope than the 1925 legislation.
Broadly speaking, the following sorts of interest are overriding, both under the 1925 legislation and the LRA 2002.
Legal (and perhaps equitable) Easements and profits
Short leases (although the definition of `short' has changed)
Customary and public rights, including rights of way, rights of sheepwalk, rights of drainage, etc.
These were, and are, overriding because it is not clear who should have the obligation of registration.
Franchises (rights to hold fairs, collect tolls, etc)
LocalLandCharges (e.g., tree preservation orders)
Rights acquired by AdversePossession (squatter's rights)
Obligations to repair sea-walls, embankments, and churches
Manorial rights (see manor) (as they are hard to register)
Rights to mine or extract minerals (as they are generally obvious)
In addition, the rights of person in ActualOccupation are automatically overriding, even if they would not otherwise be.
The following interests are, in general, not overriding, under either the 1925 or 2002 legislation.
Beneficial interests under a trust -- these interests should be protected by a restriction on the register. The interest of a Tenant For Life is not overriding even if that person is in occupation.
The burden of a Restrictive Covenant, as it is reasonable to expect the owner of the benefit to register it.
Mortgages, whether legal or equitable, as a competent mortgagor will take steps to protect it by, e.g., a Legal Charge.
Any interest that is obvious from an inspection of the register itself. Thus interests that are registered lose any overriding status they might otherwise have.
The overriding status of public rights, customary rights, manorial rights, minining and mineral rights, franchises, sea-wall and embankment repair liabilities, and local land charges is largely unchanged in the new Act. The table below compares the overriding interests that have been changed by the 2002 Act with their status in prior to that Act.
There are some changes that are more subtle that a cursory reading of the 2002 Act might suggest. First, the wording of Sch.1(2) and Sch.3(2): `so far as relating to land of which he is in actual occupation' is intended to remove the effect of FerrishurstVWallcite1998, which allowed actual occupation to be enforceable against the title, rather than against the land occupied. Second, although a legal easement is still overriding on a reading of Sch.1 or Sch.3, in fact a legal easement does not become `legal' until it is registered. When it is registered, it loses its overriding status. This means that an easement that is expressly granted is not overriding; the person to whom it was granted should have registered it.
There has been some discussion about the effect of the HumanRightsAct1998 on overriding interests. It is clearly a worry, and may be a contravention of Article 9 of the European Convention On Human Rights if a person who buys property finds it saddled with obligations of which he did not, perhaps even could not, know. So far problems have only arisen with liabilities to repair a church chancel; one can see a court being sympathetic to a person who buys a house for, say, £100,000, and then finds himself lumbered with a bill for another £100,000 to repair the church roof. However, for the time being such interests remain overriding.
Overriding interests are a major risk for any purchase of a registered title. Such interests do not appear in the register. One of the recognized aims of the Land Registration Act 2002 is to reduce the number of overriding interests which are binding upon the buyer or a registered title. In fact, the Land Registration Act 2002 reaches this purpose only to a limited degree.
The Act 2002 complicates further matters by containing two lists of overriding interests, which differ slightly. Schedule 1 lists ‘unregistered interests which override first registration’, while schedule 3 lists ‘unregistered interests which override registered dispositions’.
Among the remaining four important overriding interests the only one, Local Land Charges remained unchanged. The other three categories are Easements and Profits, Short-term Legal Leases and Property rights of a Person in Actual Occupation. These all have been reduced in their scope but will continue to be of fundamental importance.
Minor interest
Under the Land Registration Act 1925 (LRA 1925) all third party rights in registered land, other than registered charges and overriding interests , took effect in equity as minor interests and would be overridden by a registered disposition made for valuable consideration unless protected by an entry in the register. The LRA 1925 was repealed by the Land Registration Act 2002 (LRA 2002), which came into force on 13 October 2003, and does not use the term “minor interest”. An interest affecting an estate or charge is simply defined as “an adverse right affecting the title to the estate or charge” (section 132(3) (b), LRA 2002). Similarly, a third party right protected by a notice under the LRA 2002 is simply referred to as an interest affecting a registered estate or charge that is the subject of a notice in the register.
Minor interests are all proprietary interests in registered land which are not:
1) capable of substantive registration
2) mortages by registerd charge
3) overriding interests
Rights which are normally included in minor rights are as follows:
1) estate contacts, unpaid vendor’s liens, restrictive covenants and matrimonial home rights, that is rights of occupation under the Matrimonial Homes Acts
2) overreachable interests arising under a strict settlement, new-style trust of land or trust for sale.
One should keep in mind, though, that with the exception of matrimonial home rights and interests under a strict settlement, all minor interests are capable of being promoted to ‘overriding’ by operation of Schedule 3, para. 2 of the 2002 act, if the owner of the interests is in actual occupation.
This is even true of overreachable equitable interests arising under a trust for sale or new-style trust of land.However , if an owner of an overreachable interest is in actual occupation of the land, his rights can still be overreached provided the purchase price is payed by the purchaser to the correct trustees.
The new law on protection of minor interests is remarkably straightforward. The 2002 Act destroys cautions as a means of protecting minor interests. All minor interests must be protected by the entry of a notice, except that interests which arise under a trust of land will be protected by the entry of restriction.
1 www.opsi.gov.uk/ACTS/acts2002/20020009.htm
2 http://www.landreg.gov.uk/legislation/
3 http://en.wikipedia.org/wiki/Land_Registration_Act_2002
4 http://www.spr-consilio.com/artland1.html
5 www.rics.org/.../
6 http://www.mondaq.com/article.asp?articleid=17458&searchresults=1
7 http://www.answers.com/topic/land-registration-act-2002
8 http://www.kevinboone.com/lawglos_OverridingInterest.html
9 www.netlawman.co.uk/acts/land-registration-act-2002.php
10 http://www.lemon-co.co.uk/address-correct.htm
11 www.hfw.com/l3/new/newl3c047b.html
12 www.sghlaw.com/commercialproperty/articles/LandRegistrationAct2002.pdf
13 www.cus.cam.ac.uk/~mjd1001/E-Conveyancing.htm
14 http://www.jonesday.com/pubs/pubs_detail.aspx?pubID=S684
15 www.cumberlandellis.com/docs/newsletters/winter03.pdf
16 www.baineswilson.co.uk/pdfs/Squatters%20Rights%20April%202005.pdf
17 www.smartandbright.co.uk/a-z/land_reg_act_2002.html
18 http://ld.practicallaw.com/5-107-6954
19 http://uk.geocities.com/nevill5/adversepossession.html
20 http://www.oup.com/uk/orc/bin/9780199284436/sexton_chap10.pdf