land law help
I have a land law essay question that states that the doctrine of notice still applies in regards to actual occupation to registered land even after the Land Registration Act 2002 has come into force. I understand that one of the aims of the act was to make registration compulsory so that any rights that are attached to land are mentioned on the register. Therefore a purchaser should know of any rights including actual occupation. Therefore the doctrine of notice should not be applicable.
However Schedule 3 gives a list of unregistered interests which override registered dispositions including actual occupation. So actual occupation will continue to override protecting the rights of third parties.
This is where I am confused because the right will only override where it is reasonably discoverable. Is this where the doctrine of notice still applies because text books have stated that it has been removed completely from registered land. Does it also apply under schedule 1? If so will this not defeat the purpose of the act of affording protection for purchasers so that they are not bound unexpected rights.(Save for some situations where the right cannot be disclosed)
Schedule 1 refers to first registration and schedule 3 subsequent registration. If I am right in thinking the doctrine of notice applies only to schedule 3 why?
Long post think I should summarise my questions:
1) Does the doctrine of notice still apply under the LRA 2002?
2) If so does it apply to Schedule 3 only, if so why?
3)I'm not totally clear on the difference between first registration and subsequent registration/registrable dispositions either.
However Schedule 3 gives a list of unregistered interests which override registered dispositions including actual occupation. So actual occupation will continue to override protecting the rights of third parties.
This is where I am confused because the right will only override where it is reasonably discoverable. Is this where the doctrine of notice still applies because text books have stated that it has been removed completely from registered land. Does it also apply under schedule 1? If so will this not defeat the purpose of the act of affording protection for purchasers so that they are not bound unexpected rights.(Save for some situations where the right cannot be disclosed)
Schedule 1 refers to first registration and schedule 3 subsequent registration. If I am right in thinking the doctrine of notice applies only to schedule 3 why?
Long post think I should summarise my questions:
1) Does the doctrine of notice still apply under the LRA 2002?
2) If so does it apply to Schedule 3 only, if so why?
3)I'm not totally clear on the difference between first registration and subsequent registration/registrable dispositions either.
thanks can't wait til the day when i can erase it all from my brain which is a long way from now 
i was under the impression that the doctine of notice was completely replaced.
However having studied occupation of the land cases there are some interesting debates about what actually consistuted occupation
for example in Chhokar v Chhokar, the wife was in hospital giving birth when the husband sold the property but the court held she was in actual possession because AT THE TIME OF THE TRANSFER of the property she was in the property.
Strange isnt it.
Another one would be Abbey National Building Society v Cann - The son and mother went to purchase a property. The mother went abroad to a different country on the day the transfer of the property took place, she was however living in the property when the registration went through. The court held the mother had no 'actual occupation' of the property because at the time of the transfer she was out of the country. The mother argued that because she had some of her belongings put into the house 35 minutes before the transfer happened this was sufficient enough to prove she was in actual occupation, however the courts disagreed and thus the Bank took the property when the son failed to pay the mortgage payments. Mum has no interest.
However having studied occupation of the land cases there are some interesting debates about what actually consistuted occupation
for example in Chhokar v Chhokar, the wife was in hospital giving birth when the husband sold the property but the court held she was in actual possession because AT THE TIME OF THE TRANSFER of the property she was in the property.
Strange isnt it.
Another one would be Abbey National Building Society v Cann - The son and mother went to purchase a property. The mother went abroad to a different country on the day the transfer of the property took place, she was however living in the property when the registration went through. The court held the mother had no 'actual occupation' of the property because at the time of the transfer she was out of the country. The mother argued that because she had some of her belongings put into the house 35 minutes before the transfer happened this was sufficient enough to prove she was in actual occupation, however the courts disagreed and thus the Bank took the property when the son failed to pay the mortgage payments. Mum has no interest.
hangover_cure
i was under the impression that the doctine of notice was completely replaced.
However having studied occupation of the land cases there are some interesting debates about what actually consistuted occupation
for example in Chhokar v Chhokar, the wife was in hospital giving birth when the husband sold the property but the court held she was in actual possession because AT THE TIME OF THE TRANSFER of the property she was in the property.
Strange isnt it.
Another one would be Abbey National Building Society v Cann - The son and mother went to purchase a property. The mother went abroad to a different country on the day the transfer of the property took place, she was however living in the property when the registration went through. The court held the mother had no 'actual occupation' of the property because at the time of the transfer she was out of the country. The mother argued that because she had some of her belongings put into the house 35 minutes before the transfer happened this was sufficient enough to prove she was in actual occupation, however the courts disagreed and thus the Bank took the property when the son failed to pay the mortgage payments. Mum has no interest.
However having studied occupation of the land cases there are some interesting debates about what actually consistuted occupation
for example in Chhokar v Chhokar, the wife was in hospital giving birth when the husband sold the property but the court held she was in actual possession because AT THE TIME OF THE TRANSFER of the property she was in the property.
Strange isnt it.
Another one would be Abbey National Building Society v Cann - The son and mother went to purchase a property. The mother went abroad to a different country on the day the transfer of the property took place, she was however living in the property when the registration went through. The court held the mother had no 'actual occupation' of the property because at the time of the transfer she was out of the country. The mother argued that because she had some of her belongings put into the house 35 minutes before the transfer happened this was sufficient enough to prove she was in actual occupation, however the courts disagreed and thus the Bank took the property when the son failed to pay the mortgage payments. Mum has no interest.
thats because in the second case she'd never lived in the house - and the court held that having some of your possessions moved in wasn't sufficient to justify actual occupation
whereas in Chhokar - it was a temporary absence - she was a permanent resident in the house, evidenced by the fact that all her belonging were still in it - it would have been inequitable to deny her an interest
OP I wouldn't say that the 'old doctrine of notice' still has application in registered land although it may seem that was and would be tempted to draw a distinction between the old system where occupation wouldn't have been discovered on 'reasonable inspection'; and the situation we have now where rather than looking at what the purchaser should have know looks at what is fair and equitable and general principles such as a physical presence is required, transient presence will not suffice, a temporary absence does not prevent actual occupation etc etc
The_Goose
thats because in the second case she'd never lived in the house - and the court held that having some of your possessions moved in wasn't sufficient to justify actual occupation
whereas in Chhokar - it was a temporary absence - she was a permanent resident in the house, evidenced by the fact that all her belonging were still in it - it would have been inequitable to deny her an interest
OP I wouldn't say that the 'old doctrine of notice' still has application in registered land although it may seem that was and would be tempted to draw a distinction between the old system where occupation wouldn't have been discovered on 'reasonable inspection'; and the situation we have now where rather than looking at what the purchaser should have know looks at what is fair and equitable and general principles such as a physical presence is required, transient presence will not suffice, a temporary absence does not prevent actual occupation etc etc
whereas in Chhokar - it was a temporary absence - she was a permanent resident in the house, evidenced by the fact that all her belonging were still in it - it would have been inequitable to deny her an interest
OP I wouldn't say that the 'old doctrine of notice' still has application in registered land although it may seem that was and would be tempted to draw a distinction between the old system where occupation wouldn't have been discovered on 'reasonable inspection'; and the situation we have now where rather than looking at what the purchaser should have know looks at what is fair and equitable and general principles such as a physical presence is required, transient presence will not suffice, a temporary absence does not prevent actual occupation etc etc
do you mean at the time of the disposition or never lived in the house at all. Because she did live in the house with her son, im probably over complicating this, but yeah she never had 'actual occupation' at the disposition she was out gallivanting in Spain or something, but when she returned from her trip she moved into the house with her son, but the courts said that actual occupation is decided at the disposition of the property and not the registration and that at the dispositon her belongings in the property were not sufficient to create actual occupation.
hangover_cure
do you mean at the time of the disposition or never lived in the house at all. Because she did live in the house with her son, im probably over complicating this, but yeah she never had 'actual occupation' at the disposition she was out gallivanting in Spain or something, but when she returned from her trip she moved into the house with her son, but the courts said that actual occupation is decided at the disposition of the property and not the registration and that at the dispositon her belongings in the property were not sufficient to create actual occupation.
It's all very confusing tbh because she was only in actually occupation after the transfer had taken place but before registration. Having said that - my notes are very brief =P but I would say if the LRA 2002 says that the doctrine of notice shall not have application in registered land then it would be bordering on wrong to say it does - although you could potentially draw a parallel between the old doctrine of notice and the quasi doctrine of notice we seem to have now - although i would say they are different
The_Goose
It's all very confusing tbh because she was only in actually occupation after the transfer had taken place but before registration. Having said that - my notes are very brief =P but I would say if the LRA 2002 says that the doctrine of notice shall not have application in registered land then it would be bordering on wrong to say it does - although you could potentially draw a parallel between the old doctrine of notice and the quasi doctrine of notice we seem to have now - although i would say they are different
thanks this has helped me a lot the differences are a lot clearer. The old doctrine included constructive and imputed notice and its 'replacement' under sch.3 refers to actual knowledge. Just read over this section of the Act and believe it emphasises the importance for occupiers to disclose their rights and purchasers to make more extensive enquiries. So the doctrine of notice need not fully apply
If the Act is followed the existence of actual occupiers in the majority of cases should be found. Think I need to do more research to find how the Act has worked in practice. thanks helped alot
lil-star89
thanks this has helped me a lot the differences are a lot clearer. The old doctrine included constructive and imputed notice and its 'replacement' under sch.3 refers to actual knowledge. Just read over this section of the Act and believe it emphasises the importance for occupiers to disclose their rights and purchasers to make more extensive enquiries. So the doctrine of notice need not fully apply
If the Act is followed the existence of actual occupiers in the majority of cases should be found. Think I need to do more research to find how the Act has worked in practice. thanks helped alot
If the Act is followed the existence of actual occupiers in the majority of cases should be found. Think I need to do more research to find how the Act has worked in practice. thanks helped alot
- LRA 2002
o s.3 – voluntary registration
o s.4 - Compulsory registration
o s.4(2) – legal estates
o s.6 – duty to register
o s.6(4) – time limit for registration
o s.7 – failure to register
o s.9 – classes of title – freehold
o s.10 – classes of title - leasehold
o s.27(1) LRA 2002 – sets out the registrable dispositions and highlights that if a disposition is required to be completed by registration, then it does not operate at law until it is registered in accordance with the requirements
o s.29 & s.32 registered land – burden must be registered as a ‘minor interest’
o s.32 – s.47 deal with changes to the registration of notices an restriction
o Sch.1 lists rights which are overriding on first registration
o Sch.3 lists rights which are overriding on subsequent registrations
so kingsnorth v tizard, hodges v marks etc...with regards to extensive enquiries...and imputed knowledge with regards to the agent acting on behalf of the bank in tizard.
The_Goose
I'm sorry my dove! Haven't seen you about for a while - thought you might have deserted us for exam land Mr finalist =P
(Tell me about it - 20 000 words for the Jessup over crimbo...)
Still - if I can be of any service to people....please post in the law forum. (Seriously, I'v ebeen getting PMs recently and I feel guilty I cant help because I need to get down to it, but the law forum has a myriad of qualified people, so stop PMing indivdual members please!!)
Prudy
(Tell me about it - 20 000 words for the Jessup over crimbo...)
Still - if I can be of any service to people....please post in the law forum. (Seriously, I'v ebeen getting PMs recently and I feel guilty I cant help because I need to get down to it, but the law forum has a myriad of qualified people, so stop PMing indivdual members please!!)
Still - if I can be of any service to people....please post in the law forum. (Seriously, I'v ebeen getting PMs recently and I feel guilty I cant help because I need to get down to it, but the law forum has a myriad of qualified people, so stop PMing indivdual members please!!)
haha - if i see something i really can't help with I tend to draw Mr_Deeds and jacketpotato to the topic with with my irresistible charms
... or quote them...But I can quote you more often if you're not immensely busy
how come you got a warning the goose you seem like a nice person.
hangover_cure
how come you got a warning the goose you seem like a nice person.
me and Aack got into unrelated discussion on someone's thread which essentially ended in me posting the warned post of
The_Goose
Hard sausage police?
It was spam.. I am a nice person =D at least i hope so
Aight
There is no doctrine of notice in registered land. Don't get confused about this. If you don't treat the tests for notice and actual occupation completely separately you will get hopelessly confused.
What we do have in registered land is this fairly wide carve-out for the interests of persons in actual occupation - these will continue to bind. This exception is limited because it doesn't apply if the person was asked about his rights; and it doesn't apply if the right wasn't reasonably discoverable.
There are similarities between the factors you would look at to see if a buyer was on notice; and those you would look at to see if a right was reasonably discoverable. But its important to appreciate that the two tests aren't the same. In particular: they work differently. In unregistered land, if a buyer is on notice, that's it: the right binds. In registered land, FIRST the person with the right needs to establish actual occupation - once he's done that, he's got a prima facie right. If the buyer of the land doesn't want him to have the right, the buyer will have to show that the right wasn't reasonably discoverable. Note that the test is different ("not reasonably discoverable" is more obviously objective than notice) and that the burden of proof is the other way around. For your essay you will need to think about the similarities and differences between the "notice" regime in unregistered land and the "actual occupation, but not if the right wasn't reasonably discoverable" test in registered land.
Schedule 1 and Schedule 3 are doing substantially the same job. Schedule 1 is where you go if the land is being registered for the first time. Schedule 3 is where you go when land which is already registered is sold.
To illustrate, When unregistered land is sold, lawyers still go through the unregistered land conveyancing process, but the buyer must register the land within 2months. In this case you are looking at the unregistered land regime to see what rights survive the moment of transfer, and Schedule 1 to see what rights survive first registration. Of course, the seller of the land could apply for registration before sale himself, in which case the buyer would be buying registered land, so you look at Schedule 3.
They are substantially the same, though Schedule 3 is slightly wider in some respects.
There is no doctrine of notice in registered land. Don't get confused about this. If you don't treat the tests for notice and actual occupation completely separately you will get hopelessly confused.
What we do have in registered land is this fairly wide carve-out for the interests of persons in actual occupation - these will continue to bind. This exception is limited because it doesn't apply if the person was asked about his rights; and it doesn't apply if the right wasn't reasonably discoverable.
There are similarities between the factors you would look at to see if a buyer was on notice; and those you would look at to see if a right was reasonably discoverable. But its important to appreciate that the two tests aren't the same. In particular: they work differently. In unregistered land, if a buyer is on notice, that's it: the right binds. In registered land, FIRST the person with the right needs to establish actual occupation - once he's done that, he's got a prima facie right. If the buyer of the land doesn't want him to have the right, the buyer will have to show that the right wasn't reasonably discoverable. Note that the test is different ("not reasonably discoverable" is more obviously objective than notice) and that the burden of proof is the other way around. For your essay you will need to think about the similarities and differences between the "notice" regime in unregistered land and the "actual occupation, but not if the right wasn't reasonably discoverable" test in registered land.
Schedule 1 and Schedule 3 are doing substantially the same job. Schedule 1 is where you go if the land is being registered for the first time. Schedule 3 is where you go when land which is already registered is sold.
To illustrate, When unregistered land is sold, lawyers still go through the unregistered land conveyancing process, but the buyer must register the land within 2months. In this case you are looking at the unregistered land regime to see what rights survive the moment of transfer, and Schedule 1 to see what rights survive first registration. Of course, the seller of the land could apply for registration before sale himself, in which case the buyer would be buying registered land, so you look at Schedule 3.
They are substantially the same, though Schedule 3 is slightly wider in some respects.
Original post by iomwijii9
What effect have the reforms of the land registration act 2002 had on overriding interests?
Read the statute. Hint - Joint Tenants v Tenants in Common.
Please don't resurrect threads that are 6 years old. Start a new one in future
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