Lecture 23 – Registration (3)
‘Because overriding interests bind transferees of the land even though
they are, by definition, not protected on the register, they are widely
acknowledged to be a potential source of difficulty in registered
conveyancing. They necessarily reduce both the reliability and the
comprehensiveness of the register.’ – Law Commission
Registration and leases:
Schedule 3 of LRA 2002. Para 1 deals with leasehold estates in land. A
lease for 7 years of less, potential overriding status. If over 7 years, will
not have overriding status.
Leasehold estates in land
A leasehold estate in land granted for a term not exceeding seven
years from the date of the grant, except for –
o (a) a lease the grant of which falls within section 4(1)(d), (e)
or (f);
o (b) a lease the grant of which constitutes a registrable
disposition.
For an equitable lease, you will need to consider, registration of a notice
or, sch 3 para 2. Overriding status does not depend on either tenant’s
occupation of the land OR the purchaser / mortgagee not knowing about
the lease.
Leases – Summary:
Some must be registered to be legal leases: s.27(2)(b) LRA 2002,
including:
1. leases for a term of more than seven years from the date of grant;
2. leases which are to take effect in possession after the end of the
period of three months beginning with the date of the grant;
3. discontinuous leases.
If registered, they will bind purchasers of the freehold (s. 29).
Some shorter legal leases (under 7 years) are overriding interests –
sch 3, para 1.
Equitable leases may qualify as overriding interests under sch. 3
para. 2 (actual occupation), if the other requirements of the
paragraph are met.
, Legal leases – more than 3 to 7 years and equitable leases can be
protected by notice: implicit in s. 33(b) LRA 2002. Anything under,
can’t be.
Easements:
(Note: implied easements are legal easements, they have potential
overriding interest).
Governed by para schedule 3 para 3. A legal easement arising from an
implied grant, reservation or by prescription will be overriding if,
The purchaser has actual knowledge of its existence
Or it is obvious from a reasonably careful inspection of land
Or if it has been exercised in the year before the disposition.
If you can prove one of these things, then your easement will have
overriding interest.
This does not apply to express easements. They MUST be registered
(s.27.2.d). Does not apply to equitable easements.
Easements as interests in actual occupation?
If an easement does not qualify as an overriding interest under Sch. 3
para. 3, can it qualify under Sch. 3 para. 2 (interests of persons in actual
occupation)? Almost certainly not.Consider problem of actual occupation
Case of Chaudhary v Yavuz – see facts. Equitable easement so no
overriding interst under s.3, so went to section 2. Use of a staircase did
not amount to actual occupation. An easement can almost certainly never
amount to actual occupation.
Summary:
Easements expressly created out of registered estates: complete by
registration in order to operate at law: LRA 2002, s 27(2)(d). If this is
done, they will survive a registrable disposition for valuable
consideration. (If this is not done, the easement will take effect in
equity only).
Non-express easements: priority against dispositions for valuable
consideration may be protected through the rules about overriding
interests, if they meet the requirements laid down in LRA sch. 3,
paragraph 3.
Easements may also be protected by notice on the register: LRA
2002 s 32: important for equitable easements, which cannot be
overriding under LRA 2002, sch 3, para 3.
‘Because overriding interests bind transferees of the land even though
they are, by definition, not protected on the register, they are widely
acknowledged to be a potential source of difficulty in registered
conveyancing. They necessarily reduce both the reliability and the
comprehensiveness of the register.’ – Law Commission
Registration and leases:
Schedule 3 of LRA 2002. Para 1 deals with leasehold estates in land. A
lease for 7 years of less, potential overriding status. If over 7 years, will
not have overriding status.
Leasehold estates in land
A leasehold estate in land granted for a term not exceeding seven
years from the date of the grant, except for –
o (a) a lease the grant of which falls within section 4(1)(d), (e)
or (f);
o (b) a lease the grant of which constitutes a registrable
disposition.
For an equitable lease, you will need to consider, registration of a notice
or, sch 3 para 2. Overriding status does not depend on either tenant’s
occupation of the land OR the purchaser / mortgagee not knowing about
the lease.
Leases – Summary:
Some must be registered to be legal leases: s.27(2)(b) LRA 2002,
including:
1. leases for a term of more than seven years from the date of grant;
2. leases which are to take effect in possession after the end of the
period of three months beginning with the date of the grant;
3. discontinuous leases.
If registered, they will bind purchasers of the freehold (s. 29).
Some shorter legal leases (under 7 years) are overriding interests –
sch 3, para 1.
Equitable leases may qualify as overriding interests under sch. 3
para. 2 (actual occupation), if the other requirements of the
paragraph are met.
, Legal leases – more than 3 to 7 years and equitable leases can be
protected by notice: implicit in s. 33(b) LRA 2002. Anything under,
can’t be.
Easements:
(Note: implied easements are legal easements, they have potential
overriding interest).
Governed by para schedule 3 para 3. A legal easement arising from an
implied grant, reservation or by prescription will be overriding if,
The purchaser has actual knowledge of its existence
Or it is obvious from a reasonably careful inspection of land
Or if it has been exercised in the year before the disposition.
If you can prove one of these things, then your easement will have
overriding interest.
This does not apply to express easements. They MUST be registered
(s.27.2.d). Does not apply to equitable easements.
Easements as interests in actual occupation?
If an easement does not qualify as an overriding interest under Sch. 3
para. 3, can it qualify under Sch. 3 para. 2 (interests of persons in actual
occupation)? Almost certainly not.Consider problem of actual occupation
Case of Chaudhary v Yavuz – see facts. Equitable easement so no
overriding interst under s.3, so went to section 2. Use of a staircase did
not amount to actual occupation. An easement can almost certainly never
amount to actual occupation.
Summary:
Easements expressly created out of registered estates: complete by
registration in order to operate at law: LRA 2002, s 27(2)(d). If this is
done, they will survive a registrable disposition for valuable
consideration. (If this is not done, the easement will take effect in
equity only).
Non-express easements: priority against dispositions for valuable
consideration may be protected through the rules about overriding
interests, if they meet the requirements laid down in LRA sch. 3,
paragraph 3.
Easements may also be protected by notice on the register: LRA
2002 s 32: important for equitable easements, which cannot be
overriding under LRA 2002, sch 3, para 3.
