Essay on "Changes"

Essay 8 pages (2320 words) Sources: 8

[EXCERPT] . . . .

This is a change from s 70 (1) (g) and was made with the idea that it is often very difficult for buyers to discover the existence of an intermediate landlord simply from an inspection of the property.

The new law maintains the exception that a beneficiary under a settlement under the Settled Land Act 1925 is excluded from overriding status. Despite the fact this retention goes against the Law Commission's original recommendation, it was decided that the exception was sensible as since the Trusts of Land and Appointment of Trustees Act 1996 came into force, such settlements can no longer be created.

It is important to consider the wording of Schedule 1 paragraph 2 which states, "so far as relating to land of which he is in actual occupation." This is a new addition by the 2002 Act and means that where someone is in actual occupation of part of the land but have rights over the whole land purchased, their rights protected by actual occupation are confined to the part which they occupy.

A further change in the law, in relation to occupier's rights on first registration, is the absence of the qualification in s70 (1) (g) which says, "save where enquiry is made of such person and the rights are not disclosed." These words are excluded from the 2002 Act because they are no longer relevant to overriding interests on first registration. Whether a purchaser has made enquiries of a person in actual occupation is irrelevant on first registration because the question of whether or not the first registered proprietor is bound by the rights of an occupier will have been decided at an earlier stage under the unregistered conveyancing rules. That is to say, on completion when the legal title becomes vested in the purchases. However, it should be noted that the qualification is retained for registered dispositions.

Legal easements and profits a prendre

Under the old law, equitable easements which were openly exercised and enjoyed by the dominant owner as appurtenant to their land could take effect, on first registration, as overriding interests. Under the new law, only legal easements and profits a prendre can do so. Accordingly, in preventing unregistered equitable easements from acquiring overriding status the decision in Celsteel is reversed. This follows the underlying principle of the new Act that rights expressly created over land should be completed by registration. It further reflects the established view in unregistered land that equitable easements should only bind a purchaser if they are registered as Class D (iii) land charges under the Land Charges Act 1972. It is hoped that in the future, few legal easements and profits will qualify as overriding interests. In fact the LRA 2002 contains rule-making powers to ensure that, as far as possible, overriding interests are disclosed to the registrar on first registration to enable them to be noted on the register.

Customary and public rights

The 2002 Act retains both customary and public rights as overriding interests referred to herewith for the sake of completeness but not discussed further.

Local Land Charges

This type of overriding interest has not been changed by the new Act. Schedule 1, paragraph 6 of the 2002 Act replicates s. 70(1) (i) of the Land Registration Act 1925, by allowing a local land charge to override first registration. Again these are referred to for the sake of completeness and will not be discussed further.

Mines and Minerals

No change has been made by the new Act to this category of overriding interests which is again referred to for the sake of completeness. The overriding status of some mining and mineral rights previously found in s 70 (1) (l) and (m) of the Land Registration Act 1925 are today found under Schedule 1, paragraphs 7-9 of the Land Registration Act 2002. Many of these rights would be impossible to register in light of their extent and complexity as well as the prohibitive cost of preparing plans for them. The Law Commission accordingly thought it was best in this instance to preserve their overriding status.

Miscellaneous interests

There are five categories of overriding interests that have been grouped together under a miscellaneous heading under Schedule 1 paragraphs 10-14 of the 2002 Act. These are rare, of ancient origins and not always easy to discover. They have maintained their overriding interest in the same way as under the Land Registration Act 1925 and are as follows, a franchise, a manorial right, a right to rent which was reserved to the Crown on the granting of any freehold estate (whether or not the right continues to be vested in the Crown), a non-statutory right n relation to an embankment or sea or river wall, and a right to payment in lieu of tithe (corn rents).

Maintaining these miscellaneous items as overriding interests had been thought unpopular, but the Law READ MORE

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