Introduction

to Property / Land Law

(Adapted from Modern Land Law 12th edn, Martin Dixon; Land Law, Ben McFarlane, Nicholas
Hopkins & Sarah Nield; Textbook on Land Law, Judith-Anne Mackenzie & Mary Phillips; Elements
of Land Law, Gray & Gray; UOL Subject Guide)

Studying Property Law

A. What are the rights a person can have over property?
B. Creation - How are property rights created?
C. Registration

Do those rights bind a Purchaser?

A. Classification of Property generally:

REAL PROPERTY / PERSONAL PROPERTY /

REALTY / PROPRIETARY PERSONALTY

Property Rights and Personal Rights

a. Personal Right
A Right in Personem

b. Property Rights
A Right in Rem

National Provincial Bank v Ainsworth (1965)

Lord Wilberforce – Proprietary right must be definable, identifiable by Third Party & stable (a degree
of permanence)

Williams & Glyn’s Bank v Boland (1981)

City of London BS v Flegg (1988) Lord Templeman

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 B. What is land?

v All land is owned by the Monarch (others own either Estates or Interest in the land)

v Definition of land – Section 205 (1)(ix) LPA 1925

“Land” includes land of any tenure, and mines and 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; also a manor, an
advowson, and a rent and other incorporeal hereditaments, and an easement, right,
privilege, or benefit in, over, or derived from land; . . . and “mines and minerals” include
any strata or seam of minerals or substances in or under any land, and powers of working
and getting the same. . .; and “manor” includes a lordship, and reputed manor or lordship;
and “hereditament” means any real property which on an intestacy occurring before the
commencement of this Act might have devolved upon an heir;

Ø The physical land

Cuius Est Solum Latin – whoever’s the soil, it is theirs all the way to Heaven and all the way
to Hell – down to the center of the earth & up to the heavens

Ø Legal definition of Land

- Anything physically attached to it – physical land / asset
- Rights that owner or others may enjoy over it

This can be classified into:

The Real / Tangible The Intangible

Corporeal Hereditaments Incorporeal Hereditaments

v Why is land so special?

- Land is scarce, a precious and limited commodity / resource
- Special feature of land include its permanence
- The uniqueness of each piece of land – its physical location can never be shared by
another piece of land.
- Its capacity for multiple simultaneous use
- Its social importance
- This special features and importance of land has been recognised in the European
Convention of Human Rights – Article 8. Everyone has the right to respect for ‘his home’

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 C. What a buyer of land would generally want to know.

1. Does the Seller have the title to sell? Is he entitled to sell the land? Proving title
2. Whether any other parties have rights to the land which might interfere with his use of
the land

The enquiries made will differ depending on the applicable system

There are two (2) systems to prove title

a. Registered Title – Registered Land – Land Registration Act 2002
b. Unregistered Land – Law of Property Act 1925 & Land Charges Act 1972

v Important date to remember – 1925

Law of Property Act 1925
Land Charges Act 1925 and later replaced with LCA 1972
Land Registration Act 1925 and later replaced with LRA 2002
Trustees Act 1925
Administration of Estates Act 1925

The purpose / policy of these statutes is to simplify conveyancing and to strike a Balance
between the rights of interest holders and the rights of the purchasers of the land
ü Land was becoming very difficult to buy and sell.
ü Too many people had too many rights and Purchasers were afraid to buy land.
ü Difficult to determine all possible rights and the holders of those rights were not
sufficiently protected

The 1925 reforms seems to favour the Purchasers by eliminating the need to make too many
inquiries before purchase of the land

v The 1925 legislation introduced the 2 systems:

UnRegistered Land Registered Land

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 D. Types of Proprietary Rights

The 1925 legislation reduced the number of Estates and Interest in law:

ESTATES INTEREST

Cornerstone of land law Rights that a person enjoys in the

All land in England owned by Crown (Monarch) land of another
All else owns an Estate in land Eg: easements, Restrictive covenant

Tantamount to Ownership – for a Time

Ownership for a “slice of time”
Right to Use and Control land

Section 1(1)(a) & (b) LPA 1925 – only 2 estates

Can subsist in law

FSAIP TOYA
Leasehold
Freehold d

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 E. Legal and Equitable Rights Equitable Owner

a. Legal rights are enforceable as of right

Equitable rights are at the courts discretion

b. Enforcement against Third Parties

Legal Rights
o Right in rem
o Right in the land
o Enforceable against anyone who acquired an estate / interest in land (Registered Land)
o Good against the whole world

Equitable rights
o Right in personem
o Enforceable against certain people
o Note: Bona Fide Purchaser for Value Without Notice. ‘Equitable rights bind the world
with the exception of the bona fide purchaser of a legal estate for value without notice’,
often referred to as ‘equity’s darling’.

How do we determine if a Right is Legal or Equitable?

Two questions must be answered

1. Is the Right Capable of existing as a Legal Right

Or is it merely recognised as an Equitable right

Rights capable of being recognised as a legal right – Section 1(1)(a)(b) & 1(2)(a)(c) LPA 1925
ü FSAIP
ü TOYA
ü Easement
ü Mortgage
ü Profit A Prendre

2. Has it been created in a proper way – satisfying the formalities of creation of the right
Formalities
Deed – Section 52 LPA 1925 And
Registration – Section 27 LRA 2002

Right will be Equitable if:

i. Not listed in section 1(1)& (2) LPA 1925
ii. Found in section 1 LPA 1925 but Not created by Deed or no Registration was done
iii. No registration is done – Section 27 LRA 2002

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 F. Land transactions - Documents used in land dealings:

Section 2(1) & (3) LP(MP)A 1989 – Any contract for the sale or other disposition of an
interest in land can only be made in writing and signed by each party to the contract.
Note: Section 40 LPA 1925 (repealed) 27 / 09 / 89

Section 53(1)(a) LPA 1925 the creation or disposal of an equitable interest in land must be
by signed writing.

Neocleous & another v Rees (2019) – name automatically added to an email by the footer
was considered as signed for the purposes of satisfying section 2 LP(MP)A 1989

Orally / Verbally Written /

Created Rights Documents

NOT recognised as Valid Rights

Informal Document – Formal Document –

Contract / Agreement In Deed
Writing
Section 52 LPA 1925
Writing Section 1 LP(MP)A 1989
Signed

Verbally / Orally given rights

Ø Section 2 LP(MP)A 1989 – the disposition of rights in

land must be done in signed writing.

Ø Exception to the requirement of writing

i. Short leases – section 54(2) LPA 1925 & section

2(5)(a) LP(MP)A 1989
ii. Interest under implied trust – Section 53(2) LPA 1925
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iii. Proprietary Estoppel
 Unregistered Land
Law of Property Act 1925

Land Charges Act 1972

EQUITABLE RIGHTS
LEGAL RIGHTS

Section 1(3) LPA 1925

a. Any interest Not
mentioned in Sec 1(1)
(2) LPA 1925
OR
Estates b. Interest mentioned in
Section 1(1) LPA 1925 Interest sec 1(1) & (2) but not
(a) FSAIP Section 1(2) LPA 1925 created by Deed
(b) TOYA (a) Easement
(c) Mortgages
Interest
Section 1(1) LPA 1925 Interest
Section 1(1) LPA 1925
And Created by DEED
Section 1(2) Section
LPA 1925 1(2) LPA 1925
FSAIP FSAIP
BINDS THE WHOLE WORLD Easement
Easement TOYA
TOYA Mortgage

Mortgage

Non Registrable Equitable Overreachable Right

Registrable Equitable Right
Right

The application of Land Charges The application of the Doctrine of The application of Sections 2(1)
Act 1972 Notice. The rule in Hunt v Luck & 27 Law of Property Act 1925

The rights must be registered Bona Fide Purchaser of the Legal CLBS v Flegg
Estate for Value without Notice
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More Commercial in nature More Family in nature
 Registrable Equitable Rights

Section 2 Land Charges Act 1972

Class C Class D Class F

Spouses’ statutory
right of occupation
Class C(iv) Class D(iii) of the matrimonial
Class C(i) Class D(ii)
Estate Equitable home
Puisne Restrictive
Contract Easements
Mortgage Covenants

Class C(iii)
General
Eq Charge

Class C(iv) Estate contracts: Contract to have the legal estate conveyed

ü Contract to grant a lease - Equitable Lease

ü Contract to grant the fee simple - Equitable Fee Simple

ü Option to Purchase

ü Pre-emption
The right of first refusal

Armstrong & Holmes v Holmes

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If a party has any of the above rights, they must enter in a Land Charge in the Land Charges Register

Effect if the Rights is :

Registered Not Registered

Section 4(6) LCA 1972
Section 198 LPA 1925
Right is:
Registration will amount to Actual
Notice of that right to the Purchaser. VOID against
- A Subsequent Purchaser
- Of the Legal Estate
Right will BIND the Purchaser.
- For Money or Money’s worth

Midland Bank v Green

Midland Bank v Green (1980)

Facts: Unregistered Land

Father Son
Granted an Option to Purchase
Son DID NOT
of the farm for £22,500
register his
right
Estate Contract = Class C(iv)

Father wanted to ‘frustrate’ the agreement (avoid carrying out the option) after a quarrel with the
Son.

Father Wife Market value

Conveyed the farm for £500
was £40,000

The Son tried to register the Option to Purchase but it was too late.

The issue was whether the Wife was bound by the Son’s Option to Purchase?

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 Non Registrable Equitable Rights

These are rights that Do Not fall within any of the above categories

The Doctrine of Notice – The rule in Hunt v Luck

1. Examples of Rights

Ø Interest under Trust

Ø Interest arising under Proprietary Estoppel

2. The Rule : the Interest is Void against a Bona Fide Purchase for Value of the Legal Estate
Without Notice

a. Bona Fide
Acting in good faith
Honestly
Without fraud

b. Purchaser
Acquires the property
Not a donee
Includes mortgagee and Lessee

c. For Value
Must have provided consideration – money or money’s worth, marriage consideration
and also includes nominal consideration. Consideration must be sufficient but need not
be adequate
Midland Bank v Green

d. Legal Estate

e. Without Notice

Actual Notice – he has actual knowledge of the rights. He had been told of the rights or
had found out for himself.

Cases to note: Imputed Notice – where the Purchasers agent has notice of the right

Lloyds Bank v Constructive Notice - he would have been aware of the rights if he had checked.
Checking will include all enquiries and inspections which he ought reasonably to have
Carrick
made. Thus must make inquiries that you reasonably ought to have made.
Hollington Brothers
Section 199 LPA 1925 - the Purchaser is prejudicially affected by notice of those matters
v Rhode
which would have come to his knowledge if such enquiries and inspections had been
made as ought reasonably to have been made by him.
Bridges v Mees

Webb v Pollmount

Kingsnorth Finance
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v Tizard
 The Doctrine of Overreaching - Overreachable Rights

Section 2(1)(ii) LPA 1925

Section 27(2) LPA 1925

City of London BS v Flegg (1988) Lord Templeman

Williams & Glyns Bank v Boland (1981)

Under Section 2 LPA 1925, the purchaser of a legal estate will take free of any equitable (beneficial)
interests provided they pay the purchase money (if there is any) to at least two trustees under
section 27 LPA 1925.

The Beneficial interest will be Overreached - To Overreach is to take the land free of the equitable
interest. Rights are taken from the land and put into money.

The process whereby certain equitable rights in land, which may have enjoyed certain protection in
the system of registration upon sale, is “swept off” the land and transferred to the Purchase Money
that has been paid.

City of London BS v Flegg (1988) Lord Templeman

HL: The Fleggs claim was not successful. Though the Fleggs had a right in the property by virtue of
their financial contribution towards the purchase, their right had been Overreached. Since the rights
were Overreached, they no longer have any Interest in the land. Thus they will also not be able to
claim an IO

Conditions

1. Equitable Interest must be capable of being Overreached

Only applies to family rights – Beneficial Interest under trust
Birmingham Midshires Mortgage Services v Sabherwal (2000), Robert Walker LJ:

Interests that are Registrable cannot be Overreached. Rights that are commercial in nature
cannot be overreached.

2. There must be conveyance of the Legal estate. (The Purchaser must buy the legal estate)
William & Glyn’s Bank v Boland
City of London BS v Flegg
Bank of India v Sood

3. The purchase / capital money must be paid to TWO (2) Trustees or a Trust Corporation
Note: Overdraft facilities
Bank of India v Sood (1997) CA

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Note examples of rights

a. Easements

b. Leases – regardless of the duration

c. Option to Purchase

d. Beneficial Interest under Trust – Resulting Trust & Constructive Trust

e. Freehold covenants

f. Right of Pre-emption

g. Rights under Estoppel

h. Mortgages

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Registered Land
Ø Registration was introduced in 1925 – Land Registration Act 1925. It is now succeeded by
Land Registration Act 2002.

Ø Basic concept of Title Registration - Title of the land is recorded in the register. It is the
registration of the title and not the land.

Ø Created a Centralised Register – a Comprehensive Title registration. Maintained in the Land

Registry under the governance of the Chief Land Registrar

Ø System of Land Registration – the greatest reform of 1925 legislations - Her Majesty’s Land
Registry

Ø Why is there a need for Registration – Practical reasons

Ø Practical goals:

Land Registration Act 1925 & Land Registration Act 2002

1. Land Registry Blog 9/10/ 2014 - Today 85% of England and Wales is under “Registered Land”

2. Today LRA 2002 applies. The LRA 1925 has been repealed but its principles are still being
used. LRA 2002 - Came into force 13th Oct 2003

3. LRA 2002 is the product of years of consultation – Land Registry & Law Commission.

Law Commission 271 – July 1998 “Land Registration for the 21st Century; A Conveyancing
Revolution” (2001)

Law Commission Consultative Document “Land Registration for the 21st Century”. Law
Commission No. 254

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 4. LRA 2002 – Purpose / Objective
o The Register should be a complete and accurate reflection of the state of the title of the land
at any given time.
o To have as many rights as possible in the register.
o The number of Overriding Interest should be reduced
o Possible to investigate title to the land on-line with min added inquiry / inspection
o To enhance the security of the title offered by the Register through technology – online
o Title by registration
o Electronic Conveyancing

5. LRA 2002 was primarily designed for E-Conveyancing – the most revolutionary aspect

6. Primary Aim – LRA 2002

It is to ensure

Quick Efficient Inexpensive

Transfer of Estates and Interest in land

While ensuring that Third Party interest in the land are properly protected

Simplify Conveyancing

7. LRA 2002 – Policy

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 Land Registration Act 2002

Principles of Registered Land Types of Rights

Mirror Insurance

Curtain Registrable Estates /

Interest Overriding Interest /
The Register Interest that Override

Interest that require

Registration

Property Section Charges Section

Proprietorship Section

Registered Titles
Title by Registration – LRA 2002 (not registration of title – LRA 1925)
The New Owner must register within 2 months from the completion of the transaction. If he did not,
it would be VOID as regards the Legal Title. He would only have an Equitable title.

Title by Registration

o The Register is the Source of a person’s title and it is not simply the recording of the title
o The Register is the reason why a person owns land
o The act of registration confers title to the new proprietor
o Until the registration is complete, the new owner does not have title
o Thus only ONE owner which is the Registered Owner
o Even if there was a mistake leading to registration, the act of registration will cure any
defect.
o The register is everything
o The Register though not a perfect mirror is Conclusive

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 The Title is Not Complete Until the Registration takes place

Registration is the Source of the Title

Section 58 LRA 2002

Ø The registered title is guaranteed
Ø It is a valid title
Ø Interest is conclusive
Ø Even of the title was obtained through fraud / mistake

Walker v Burton (2013)

The conclusive effect of section 58 LRA 2002 was challenged in:

Malory Enterprise Ltd v Cheshire Homes & CLR (2002)
Fitzwilliam v Richall Holdings (2012)

But the CA in Swift 1st v Chief Land Registrar (2015) said that a person registered with a title has
both the Legal and Equitable title.

Principles of Registered Land

A. Mirror – the Register must mirror the rights that exist on the land. Register reflects the state
of the land accurately and conclusively.

B. Curtain – certain rights do not appear on the register. They exist behind the curtain. Interest
under Trust

C. Insurance – the Government guarantees the register. Thus any loss suffered due to the
register, will be compensated

The Register
A. Property Section of the Register – describes the land, reference to the plan and type of title.
The map of the land

B. Proprietorship Section of the Register – name of the proprietor and address

C. Charges Section of the Register – details of Third Party rights over the land

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Types of Rights

Registrable Estates / Interest – Substantive Registration

Three separate provisions on the registration of title must be considered under LRA 2002:

A. Voluntary First Registration - Section 3 LRA 2002

B. Compulsory First Registration – Section 4 LRA 2002

C. Disposition of Estate which is already registered – Section 27 LRA 2002

Sections 2 – 4 LRA 2002

Voluntary Registration Compulsory Registration

Section 3(1) LRA 2002 Section 4(1) &(2) LRA 2002

1. Legal Estates When a trigger event takes place:
FSAIP
TOYA > 7 years [sec 3(3)]
2. Rentcharge 1. Transfer of a Legal Estate for
FSAIP
3. Franchise - valuable consideration
4. Profit A Prendre - other consideration
- gift
- court order
- vesting assent

2. Legal Lease > 7 years TOYA > 7 yrs

3. Creation of 1st legal mortgage

* Expressly Created Legal Easement –

ST is Registered Land – Section 27(2)(d)

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 A. Voluntary First Registration - Section 3 LRA 2002

B. Compulsory First Registration – Section 4 LRA 2002

Section 4 – states the trigger events

Section 6(4) LRA 2002 – must register within 2 months of the relevant period (trigger event)

Section 7 LRA 2002 – the new owner must make the application.
– If fail to register the FSAIP, the transaction is VOID.
– If fail to register Lease or Mortgage, the interest would be VOID.

Note: Section 132 LRA 2002

C. Disposition of Estate which is already registered – Section 27 LRA 2002

If the Title is already registered, there will be a ‘registered disposition’ transferring the already registered
title from the Transferor to the Transferee. This must be done in a DEED. However in order for it to be a
Legal Estate (exist in law), it must be completed with registration.

Section 27 LRA 2002

(1) If a disposition of a registered estate or registered charge is required to be completed by
registration, it does not operate at law until the relevant registration requirements are met.

(2)In the case of a registered estate, the following are the dispositions which are required to be
completed by registration—

(a) a transfer,

(b )where the registered estate is an estate in land, the grant of a term of years absolute—

(i) for a term of more than seven years from the date of the grant,

(d) the express grant or reservation of an interest of a kind falling within section 1(2)(a) of the Law of
Property Act 1925

Section 27(1) - It will be legal only if completed by Registration. The dispositions above will NOT take
effect at law until the registration requirements are met.

DEED + REGISTRATION

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Section 29 LRA 2002 – Special Priority Rule

If a Purchaser has paid

- Valuable consideration. Section 132 LRA 2002
- Completed the purchase by registration

Then the purchaser will be bound by

a. Interest that appear under Substantive registration
b. Interest that appear on the Charges register
c. Interest that Override

Any other earlier interest which in not protected on the register will not bind the Purchase even if he
know / had actual knowledge of the rights.

Section 28 LRA 2002 – the Basic Priority Rule.

Halifax v Popeck (2008)

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Interest that Require Registration / Interest Protected by Entry on
Register (Minor Interest)

What are these rights Interest that CANNOT be

protected by entry of Notice

Methods of Protection

Section 33 LRA
2002

Notice Restriction

What are these rights

o The aim of the LRA 2002 – to enter as many proprietary interests as possible on the register.

o The purpose is to protect the interest AND to alert the Purchase of the existence of the
rights

o Section 29 LRA 2002 - If a person has an interest in land, then that right must be protected
on the register, to ensure their priority against a Subsequent Purchaser. If it is not protected,
it would be Void and will NOT be binding on the subsequent purchaser.

o Section 28 LRA 2002 - Unregistered interest will bind a Non-Purchaser

o Section 71 LRA 2002

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 Methods of Protection

A. Notice

Section 32 – an entry in the register of the burden of an interest affecting the registered
estate

Ø Usually entered in the Charges Section of the Register

Ø A mechanism by which commercial equitable interest are nailed to the land to ensure they
survive subsequent disposition.
Ø When entered – the interest will take priority. It will bind a subsequent purchaser – Section
29 LRA 2002; Dominion Homes v Prince Evans Solicitors (2015)
Ø There is no exhaustive list of what be protected by Notice.
Ø There is however a list of what CANNOT be protected by entry of Notice – Section 33 LRA
2002

Rights that

CAN be protected by Notice CANNOT be protected by Notice

Not Exhaustive
Section 33 LRA 2002

a. Agreed Notice
Section 34 LRA 2002

b. Unilateral Notice
Section 34(2)(b) LRA 2002

There is No Difference in the level of protection between Agreed Notice and Unilateral Notice. The
degree of protection is the same – both give Substantive Priority Protection.

33 - Excluded interests
No notice may be entered in the register in respect of any of the following—
(a) an interest under—
(i) a trust of land, or
(ii) a settlement under the Settled Land Act 1925 (c. 18),

(b) a leasehold estate in land which—

(i) is granted for a term of years of three years or less from the date of the grant, and
(ii) is not required to be registered,

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 Short Leases

Exception to the requirement of writing

Short leases – section 54(2) LPA 1925 & section 2(5)(a) LP(MP)A 1989
Leases of 3 years or less can be done orally, provided:
i. Takes effect in possession (date of the grant)
ii. Best rent reasonably obtainable (market rent)
Fitzkriston v Panayi (2008)
iii. Does not require payment of premium or fine

These Short Leases will be Legal Leases

B. Restriction

Section 40 & 41 LRA 2002

Ø Entered in the Proprietorship Section of the Register

Ø Controls the registered proprietors ability to sell the land or deal with it
Ø Prevents a disposition of the land and any manner of dealings with the land unless and until
there has been a compliance with the terms of the relevant ‘restrictions’
Ø Conditions will be specified and these must be satisfied if the land is to be dealt with
Ø E.g. of rights protected by Restriction
- Persons with a Beneficial Interest under Trust
- Option to Purchase

Ø Note the Doctrine of Overreaching

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Interest that Override / Overriding Interest

o These are rights that DO NOT appear on the register

o Rights that Bind a Purchaser without entry / appearing on the register

o Rights that bind automatically without registration

o Overriding interests are hence a hazard for the purchaser: not visible on the register but
binding upon the purchaser regardless of notice.

FLAW in the system CRACK in the mirror of title

- The rights are discovered through physical inspection of the land

- Preventing the Register from being the perfect reflection of title
- There cannot be a Register only system

Overriding Interest under LRA 1925

Section 70(1)

Section 70(1)(a) – Section 70(1)(f) – Section 70(1)(k) –

Easement and Adverse Leases Not
Profits Possession exceeding 21
years
Celsteel Ltd v Alton Hse Hldg Section 70(1)(g) –
Thatcher v Douglas Interest of
- Legal and equitable persons in Actual
Occupation

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 Schedule 1 – First Registration Schedule 3 – Subsequent
Registration
Unregistered Land Registered
Land Registered Land Registered Land

Para 1 Para 2 Para 3 Para 1 Para 2 Para 3

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 Interest that Override / Overriding Interest under LRA 2002
Schedule 3

Para 1
Para 2
Para 3
- Legal Leases – CPBS Impliedly Created Legal
v Miller (grant = - Interest of a person Easements
equitable leases - In Actual Occupation
excluded)
- Not exceeding 7
years

Note the Conditions Note the Conditions

Provided they are either:

- Known to the purchaser and

- Obvious on a reasonably careful

inspection of the ST land or

- Have been exercised within one

year before the sale of the land.

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 Schedule 3 Para 2

Interest Actual
Occupation

Interest / Right + Actual Occupation = Overriding Interest

R + AO = OI

Conditions

(a) an interest under a settlement under the SLA 1925;

(b) an interest of a person of whom inquiry was made before the disposition and who failed to
disclose the right when he could reasonably have been expected to do so;

(c) an interest—

(i) which belongs to a person whose occupation would not have been obvious on a reasonably
careful inspection of the land at the time of the disposition, and

(ii) of which the person to whom the disposition is made does not have actual knowledge at that
time;

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 A. Interest

o A Proprietary Right - it must be recognised as interest in the land

Examples of rights

Rights that do NOT fall within this category

a. Spouses right to occupy

b. Interest under a SLA 1925 settlement – Para 2(a)
c. Future leases that need to be registered – Para 2(d)

B. Actual Occupation

o This is a Question of Fact to be determined by reference to the circumstances of each case

Williams v Glyns Bank v Boland (1981), Lord Wilberforce - These words are ordinary words
of plain English and should be, in my opinion, be interpreted as such. I do not think that the
word actual was intended to introduce any additional qualifications, it merely emphasises
what is required is physical presence.

“…it is the fact of occupation that matters…”and what is required is “physical presence on
the land and not some entitlement in the law”.

o This was considered again in Thompson v Foy (2009) Lewison J and it was followed in Link
Lending v Bustard (2010) Mummery LJ.
Applied Boland - AO was as what Lord Wilberforce had said.

Abbey National BS v Cann (1991) Lord Oliver – “involve some degree of permanence and
continuity”

o The nature and extent of physical presence can vary depending on the nature of the
property.

Malory Enterprises v Cheshire Homes (2002)

o Time to be in Actual Occupation – AO must be present at the date of disposition (date of

transfer and the registration)
Abbey National BS v Cann (1991)
Thompson v Foy (2010)

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 o Temporary absence from property

The length and the reason for the absence will be looked at in determining AO
Chhokar v Chhokar (1984) - AO
Stockholm Finance v Garden Holdings (1995) – No AO as absent for 1 full year

If the person at any particular time is not physically present on the land at that time, it
would usually be necessary to show that his occupation was manifested and accompanied
by a continuing intention to occupy.

Link Lending V Bustard (2010) CA

Points to Note

1. AO under LRA 1925 – which no longer applies under LRA 2002

a. Rights of a person who is in receipt of rents and profits

LRA 1925 – will be considered to be in AO
LRA 2002 – will NOT be considered to be in AO

b. Ferrishurst v Wallcite has been overruled. The interest must relate to land of which the
person is in AO. The right will only override to the extent it coincides with the AO

2. The mere fact of Actual Occupation itself is not protected if the Occupier has no separate
proprietary interest in the property (thus it is Not right of Actual Occupation)

3. There is No need to have a causal link / connection between the Interest and the AO.
Example:
Right – Option to Purchase the house
AO – staying there as a family member / licencee / tenant of the house

4. AO serves as a warning to the Purchaser of the existence of a potential right in the property

5. Several people can be in Actual Occupation at the same time

Hodgson v Mark (1971)

6. Spouses Actual Occupation

Bird v Syme – Thomson (1979
William v Glyn’s Bank v Boland

7. Children’s Actual Occupation

Hypo – Mortgage Services v Robinson (1997)

8. Can an easement amount to Actual Occupation

Chaudhary v Yavuz (2011) CA
Saeed v Plustrade (2001) CA

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Additional conditions under Schedule 3

These additional conditions were not found in section 70(1)(g) LRA 1925
These conditions are not found in Sch 1 Para 2

Schedule 3 Para 2

(a) an interest under a settlement under the SLA 1925;

(b) an interest of a person of whom inquiry was made before the disposition and who failed to
disclose the right when he could reasonably have been expected to do so;
(c) an interest—
(i) which belongs to a person whose occupation would not have been obvious on a reasonably
careful inspection of the land at the time of the disposition, and
(ii) of which the person to whom the disposition is made does not have actual knowledge at that
time;

Schedule 3 Para 2 (b) - Interest of a person of whom inquiries were made before the disposition and
who fails to disclose the rights in circumstances where they could reasonably have been expected to
do so.

Schedule 3 Para 2(c)(i)(ii) Interest of a person whose occupation would not have been Obvious on a
Reasonably careful inspection of the land and of which the Purchaser does not have Actual
Knowledge

Conclusion
Some rights can come under a few categories.

1. Legal lease of between 3 to 7 years

Notice – section 32
OI – Sch 3 Para 1

2. Equitable Leases
Notice – Section 32
OI – Sch 3 Para 2

3. Option to Purchase
Notice – Section 32
OI – Sch 3 Para 2

4. Interest under trust

Restriction – section 40
OI – Sch 3 Para 2
Overreaching – section 2 & 27 LPA 1925

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UOL Subject Guide Activity

Activity 3.5

Paul transfers the registered title of Whiteacre to Samantha for £10,000. Will Samantha be bound by
the following interests, all of which arose prior to the sale of Whiteacre to Samantha?

a. An easement granted by Paul to his neighbour Bethany.

b. A restrictive covenant granted by Paul to his neighbour Saskia.

c. Eloise’s beneficial interest in Whiteacre arising from her contribution to the purchase price Paul
paid when he bought the property.

d. Tamara’s licence to occupy Whiteacre.

e. The option to purchase Whiteacre Paul granted Chris.

f. How, if at all, would your answer to each of the questions change in each of the following
alternative circumstances?

Ø Samantha paid £10 for Whiteacre.

Ø Samantha paid a peppercorn for Whiteacre.
Ø Samantha gave no consideration for Whiteacre.
Ø The legal title of Whiteacre was co-owned by Paul and Gordon who jointly conveyed it to
Samantha.

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Daniel was the registered owner of Blackacre and has lived there with his high school sweetheart,
Nancy for many years now. They both contributed unequal amounts to the purchase price. Blackacre
is a farm which includes two fields known as Snow Field and Gold Field.

i. Last year, Daniel orally agreed that Stephen could rent Snow Field for three years for an
annual rent of £10,000.

ii. Fawn, a neighbouring landowner, insists that she has a legal right to use a shortcut
across Gold field to access the road from her house However, Fawn does not have any
documentation to support her claim.

iii. In January 2020, Daniel agreed, in writing, to give Roger the right to purchase Blackacre
anytime over the next two years.

iv. At the beginning of this year, Nancy went to Nepal for an indefinite period to do some
research for her PhD.

v. Daniel has also allowed his nephew, James, to occasionally use their guest room when
he is in town.

Last month Daniel sold Blackacre to Aaron who is now the registered owner of Blackacre. Aaron has
asked Stephen to leave Snow Field and refused Fawn permission to cross Gold Field. Roger now
wants to exercise his option. Nancy has returned to claim what “is rightfully hers”. Daniel has
disappeared with the proceeds of the sale. Aaron has asserted that he is not bound by Roger’s
option and owes Nancy nothing. He has also threatened James that he will sue him for trespass if
comes onto the land.

Advise Stephen, Fawn, Roger, Nancy and James

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