Land Law- Overriding Interests

What section are OI held under?

SCH 3 LRA 2002

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What Overriding interests are held under Sch 3 Paragraph 1 LRA 2002?

Legal leases for 7 years or less

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What overriding interests are held under Sch 3 paragraph 3 LRA'02?

Legal easements implied on sale of part/ created by prescription

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What overriding interests and held under Sch 3 paragraph 2 LRA'02

Interests of persons in actual occupation

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When do Para 1 and paragraph 3 bind the buyer?

Binds buyer if exists by date of completion of sale

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When would interests under Paragraph 2 bind the buyer?

They would bind the buyer if there is a person in occupation by completion of sale.

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If under paragraph 2, someone is protecting an interest under a trust can a buyer overreach?

Yes it can be overreached. A buyer who has overreached will not be bound.

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What are the three aspects of overreaching?

1. Has to be a purchase of a legal estate 2. Needs to pay purchase money to all trustees 3. who must be atleast 2 in number.

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Schedule 3 paragraph 2 has four requirements that must be satisfied to claim protection. what are these requirements?

1. Interest in the land 2. Actual occupations 3. occupation must be obvious on reasonable careful inspection of land at time of sale or purchaser actually know of interest. 4. If inquiry made of person claiming the right, he must disclose it.

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Which interests will never bind as an overriding interest?

Home right interests, such as spouse to occupy marigal home. s30 FLA 1996. S31 says a home right cannot be overriding must be places on register by a protection of notice

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Under Paragraph 2 what is the first requirement for a person to have actual occupation of the land?

1. The occupation is obvious on a reasonably careful inspection of the land at the time of the sale OR the person entering into the disposition had actual knowledge of the interest.

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Under paragraph 2 what is the second requirement for a person to have actual occupation?

2. The person with the interest, if asked about it before the disposition, did not fail to disclose it in circumstances where he could reasonably have been expected to do so.

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Under paragraph 3 the easement must be which to be Overriding - equitable or legal?

Paragraph 3- Legal (not equitable) easements and profits a pendre arising otherwise than by express creation (i.e. by prescription or implication)

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What is the first requirement which can be satisfied out of the three possible to have an overriding easement?

1. The person entering into the disposition actually knew about the easement/ profit before the disposition

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What is the first requirement which can be satisfied out of the second possible to have an overriding easement?

2. The easement/profit would have been obvious on a reasonably careful inspection of the land.

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What is the third requirement which can be satisfied out of the three possible to have an overriding easement?

3. The easement/profit has been used by the person entitled to it in the year preceding the disposition

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When must be the right (overriding interest) must be registered?

the right in question must be in existence by the date of completion of the disposition, not the date when the disposition is registered.

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what does the case of Williams & Glyn's Bank V Boland (1981) set out?

this case sets out what is meant by actual occupation- property in sole name of husband. No mention of wife even though she contributed to price (resulting interest) wife claimed had an equitable interest and that her equitable interest took priority

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What does the case of Williams & Glyns.... answer card 2.

over mortgage lender. Judge said actual occupation is the fact of occipation that mater. Requirement = you must have physical presence on the land - specific fact.

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Do you need to actually be living in the property in order to have actual occupation?

Not necessary that you need to be living there as a resident permanently. Depends on nature and purpose of prop

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What did Lord Wiberforce say about actual occupation in the case of William & Glyns Bank V Boland?

"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" (Lord Wilberforce in Williams & Glyn's Bank V Boland) (1981).

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What did Lord Oliver say about occupation of land and its meaning in the case of Abbey National Building Society V Cann?

'occupation' is a concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied... on the the other hand, it does, in my judgment, involve some degree of permanence and continuity"

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Lloyds Banks PLC V Rossett

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What did the case of Kling V Keston Properties Ltd (1985) say about equitable interests under Para 3 sch 2?

Equitable be enough as long as combined with actual occupation. In this case the person occupied by parking their car in garage- under a licence agreement. Combination of two factors, meant they had actual occupation qualified under sch 3 para 2.

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What did Chhokar V Chhokhar say about actual occupation?

Temporary absence- husband sold house whilst wife was in hospital giving birth. Question arrose as to whether she was in actual occupation. Intent to return - she had actual occupation.

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What were the facts of Link Lending Ltd V Bustard?

Link Lending Ltd V Bustard- Was in actual occupation, meaning overriding interest. Pesistency applying to go home, noone had said she would never return. Evidenced/ supported by regular visits to the property.

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How should you get protection against overriding interests?

-express agreement - Implied agreements -overriding (trust interests under para 2 only) - Enquires / inspection Implied agreement - say mortgage interest takes priority over overriding interest.

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Land Law- Overriding Interests

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