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Land Law - Registered Land - Overriding Interests
An overriding interest, as opposed to those that need to be registered in order to be enforceable, will bind a buyer whether or not they are aware of it and even if it is not listed on the register of title. The following categories apply to overriding interests: profits and easements Persons in actual occupation's interests are protected by short-term legal leases. Profits and easements You would argue that these shouldn't be here, particularly since a legal easement is a disposition that can be registered in order to be protected. In cases where the easement has been issued specifically from the registered legal estate, this is true. Easements and profits, however, can override interests in certain situations, which are listed below:
Regardless of how it was developed, any easement that was an overriding interest prior to the implementation of LRA 2002 will remain so.
any fresh legal easement that Section 62 LPA 1925 implicitly creates.
any fresh legal easement established in accordance with Wheeldon v. Burrows.
any newly established legal easement as a result of prescription, common intention, or necessity.
We shall take a quick look at the situations in which an easement would not become a dominant interest. They are as follows: It is not something that the new buyer actually knows. An examination of the land with a reasonable level of care would not have revealed it. No exercise of the easement or profit has taken place in the last 12 months.
Celine is the owner of a sizable piece of land, and a little trail leads to a nearby nature reserve on the far side of her property. It can only be accessed by the neighboring land, although Nicola, the neighbor, has not used this trail in many years and has other ways to access the nature reserve. It is also very overgrown. Due to the row of trees in front of the route, it would be difficult to detect it when inspecting Celine's land. Barbara purchases land from Celine. Nika wishes to begin utilizing the walkway, but the title registry makes no mention of this entitlement. Would Barbara still be bound by her ownership if this right took precedence over it? It is highly improbable that Nika would be able to establish this as the dominant interest. Even though a right of way has the potential to be a legal easement, it has not been established in any of the ways mentioned above and does not satisfy the necessary conditions to be superseding. These conditions are: Barbara is unaware of the right's existence; the right was not immediately apparent upon a reasonable inspection of the land; and Nicola has not used the right of way in the year prior.
Short-term leases
A future buyer, whether or not they knew about the lease, shall be bound by overriding interests in leases granted for seven years or less. This only applies to equitable leases, which still need to be registered in order to be legally enforceable. However, if the tenant is actually occupying the space, equitable leases might take precedence, which is what we will address next.
Persons in Actual Occupation
This usually refers to someone who resides on the property and is in actual occupation, even if they are not the estate's formal owners. An overwhelming interest in the estate can be shown by a third party occupying the space in question. It is up for debate whether or not a party is in "actual occupation," although being physically present on the property is necessary. While it is doubtful that certain brief absences will have an impact on "actual occupation," the parties' intentions must be taken into account to show that this interest has emerged.
For the past eight years, Fiona and Jojo have resided on the land. Fiona still has the estate registered in her own name, and two years ago, she gave the North Tyne Bank a new mortgage that is now recorded as a legal charge. Due to Florence's mortgage delinquency, the bank is requesting a possession order for the property. Jess has maintained that because she contributed the first money toward the purchase price, she is entitled to a legal interest in the property. She not only lives in the house, but she was also there when the property was valued. She contends that her interest, which supersedes the bank's recorded legal charge, binds them. Is the bank constrained by Jojo's interests? The answer is yes, and this is quite typical of all case law addressing this matter. Jojo is in actual occupation of the land, which would have been strengthened even more if a valuation had been done when Jojo was present. She holds an equitable interest based on contributions under a trust of land (if registered as a restriction on the title deeds then this would be an express trust). The bank would not be covered by any of the exclusions if they had taken no action to look into that occupation. They would have to make sure Jess is paid monetarily for her contribution if they apply for a possession order and are successful in getting an order for sale.
What is meant by "actual occupation" Since there is no definition for "actual occupation" in statute, case law has addressed this issue.
Boland v. Williams and Glyn's Bank [1981]
The husband held sole legal title to the residence. Because of her financial contributions, Mrs. Boland had an equitable interest in the house. According to the Court of Appeal, Mrs. Boland was actually occupying the land; proof of a "physical presence" was all that was needed.
Cann v. Abbey National [1991]
When Mr. Cann bought a property, he stated that it would be used exclusively for his business, but his mother, Mrs. Cann, and her partner would also be living there. By making a contribution toward the purchase price, his mother acquired a proprietary interest in the asset. When the transaction was completed, Mrs. Cann was on vacation overseas and didn't move into the property until she got back. Mr. Cann stopped making his mortgage payments. The court determined that Mrs. Cann's interest did not supersede the bank's as she was not in "actual occupation" on the completion date.
Chhokar and others [1984]
A property was bought under Mr. Chhokar's name alone, but since both parties paid for its acquisition and maintenance, Mrs. Chhokar gained a proprietary stake in it. While she was delivering birth in a hospital, Mr. Chhokar made plans to sell the property without telling her. When she got home, her door was locked. Despite her absence, the Court determined that she possessed a dominant interest and was in fact occupied. She had every intention of going back home, and her furniture and belongings were still in the house.
Turner v. AIB [2016]
Mrs. Turner chose to live permanently outside of the United Kingdom, where she lived in Barbados, but she did visit her house sometimes. Her personal belongings had been taken out, but her furniture was still there. The Court determined that her interest was not paramount and that there was nothing "actual" about her line of work.
Although a person's "actual occupation" is undoubtedly subjective, the court will nonetheless look for proof that the occupation is ongoing and steady. As long as there is a clear intention to return, even brief absences do not imply the absence of actual occupation.
An overriding interest, as opposed to those that need to be registered in order to be enforceable, will bind a buyer whether or not they are aware of it and even if it is not listed on the register of title. The following categories apply to overriding interests: profits and easements Persons in actual occupation's interests are protected by short-term legal leases. Profits and easements You would argue that these shouldn't be here, particularly since a legal easement is a disposition that can be registered in order to be protected. In cases where the easement has been issued specifically from the registered legal estate, this is true. Easements and profits, however, can override interests in certain situations, which are listed below:
Regardless of how it was developed, any easement that was an overriding interest prior to the implementation of LRA 2002 will remain so.
any fresh legal easement that Section 62 LPA 1925 implicitly creates.
any fresh legal easement established in accordance with Wheeldon v. Burrows.
any newly established legal easement as a result of prescription, common intention, or necessity.
We shall take a quick look at the situations in which an easement would not become a dominant interest. They are as follows: It is not something that the new buyer actually knows. An examination of the land with a reasonable level of care would not have revealed it. No exercise of the easement or profit has taken place in the last 12 months.
Celine is the owner of a sizable piece of land, and a little trail leads to a nearby nature reserve on the far side of her property. It can only be accessed by the neighboring land, although Nicola, the neighbor, has not used this trail in many years and has other ways to access the nature reserve. It is also very overgrown. Due to the row of trees in front of the route, it would be difficult to detect it when inspecting Celine's land. Barbara purchases land from Celine. Nika wishes to begin utilizing the walkway, but the title registry makes no mention of this entitlement. Would Barbara still be bound by her ownership if this right took precedence over it? It is highly improbable that Nika would be able to establish this as the dominant interest. Even though a right of way has the potential to be a legal easement, it has not been established in any of the ways mentioned above and does not satisfy the necessary conditions to be superseding. These conditions are: Barbara is unaware of the right's existence; the right was not immediately apparent upon a reasonable inspection of the land; and Nicola has not used the right of way in the year prior.
Short-term leases
A future buyer, whether or not they knew about the lease, shall be bound by overriding interests in leases granted for seven years or less. This only applies to equitable leases, which still need to be registered in order to be legally enforceable. However, if the tenant is actually occupying the space, equitable leases might take precedence, which is what we will address next.
Persons in Actual Occupation
This usually refers to someone who resides on the property and is in actual occupation, even if they are not the estate's formal owners. An overwhelming interest in the estate can be shown by a third party occupying the space in question. It is up for debate whether or not a party is in "actual occupation," although being physically present on the property is necessary. While it is doubtful that certain brief absences will have an impact on "actual occupation," the parties' intentions must be taken into account to show that this interest has emerged.
For the past eight years, Fiona and Jojo have resided on the land. Fiona still has the estate registered in her own name, and two years ago, she gave the North Tyne Bank a new mortgage that is now recorded as a legal charge. Due to Florence's mortgage delinquency, the bank is requesting a possession order for the property. Jess has maintained that because she contributed the first money toward the purchase price, she is entitled to a legal interest in the property. She not only lives in the house, but she was also there when the property was valued. She contends that her interest, which supersedes the bank's recorded legal charge, binds them. Is the bank constrained by Jojo's interests? The answer is yes, and this is quite typical of all case law addressing this matter. Jojo is in actual occupation of the land, which would have been strengthened even more if a valuation had been done when Jojo was present. She holds an equitable interest based on contributions under a trust of land (if registered as a restriction on the title deeds then this would be an express trust). The bank would not be covered by any of the exclusions if they had taken no action to look into that occupation. They would have to make sure Jess is paid monetarily for her contribution if they apply for a possession order and are successful in getting an order for sale.
What is meant by "actual occupation" Since there is no definition for "actual occupation" in statute, case law has addressed this issue.
Boland v. Williams and Glyn's Bank [1981]
The husband held sole legal title to the residence. Because of her financial contributions, Mrs. Boland had an equitable interest in the house. According to the Court of Appeal, Mrs. Boland was actually occupying the land; proof of a "physical presence" was all that was needed.
Cann v. Abbey National [1991]
When Mr. Cann bought a property, he stated that it would be used exclusively for his business, but his mother, Mrs. Cann, and her partner would also be living there. By making a contribution toward the purchase price, his mother acquired a proprietary interest in the asset. When the transaction was completed, Mrs. Cann was on vacation overseas and didn't move into the property until she got back. Mr. Cann stopped making his mortgage payments. The court determined that Mrs. Cann's interest did not supersede the bank's as she was not in "actual occupation" on the completion date.
Chhokar and others [1984]
A property was bought under Mr. Chhokar's name alone, but since both parties paid for its acquisition and maintenance, Mrs. Chhokar gained a proprietary stake in it. While she was delivering birth in a hospital, Mr. Chhokar made plans to sell the property without telling her. When she got home, her door was locked. Despite her absence, the Court determined that she possessed a dominant interest and was in fact occupied. She had every intention of going back home, and her furniture and belongings were still in the house.
Turner v. AIB [2016]
Mrs. Turner chose to live permanently outside of the United Kingdom, where she lived in Barbados, but she did visit her house sometimes. Her personal belongings had been taken out, but her furniture was still there. The Court determined that her interest was not paramount and that there was nothing "actual" about her line of work.
Although a person's "actual occupation" is undoubtedly subjective, the court will nonetheless look for proof that the occupation is ongoing and steady. As long as there is a clear intention to return, even brief absences do not imply the absence of actual occupation.
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