Land Registration Act, 2002 | Property Law

Running head: PROPERTY LAW
PROPERTY LAW
Name of the Student
Name of the University
Author Note

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1)
. According to the provision of the Land Registration Act, 2002, an unregistered
interest are those interest that overrides the recorded title and permits to exercise the right
against the land in favour of the person claiming the overriding interest. Therefore, this
interest can be said to be overriding interest. Section 11, 12, 29, 30 Law Reforms Act 2002
elaborates Overriding interests and its principles1. Overriding interests are said to be those
concerns that are not secured through the register but is still binding on a person who obtains
an interest over the registered land2. This interest can either obtained on the first registration
or in the subsequent registration of land through the method of registration of the title.
Interests that override a registered character are always those types of interests that bind
anyone obtaining the same underneath a registered disposition, which includes a purchaser
for a valuable consideration. According to section 29 of the Land Registration Act, 2002, the
purchaser of land can take for all unregistered interest except for an overriding interest of a
person over the land3. However, as these overriding interests are not mentioned in a
registered deed, it is difficult to discover the same thorough inspection. These overriding
interests have been considered as a drawback for the registered title.
To allege an overriding interest, a person requires to prove that he or she has a
proprietary right or interest over the property,4 and he or she is in actual occupation over the
land during the time of such claimed interest. Furthermore, they need to ensure that such
interest has not been explicitly barred by the LRA 20025. In the case of Abbey National BS v
Cann, the court apprehended that an individual to claim the defense of the overriding interest
1 Dixon, Martin. "Fraud, rectification and land registration: a choice." (2017).
2 Abbey, Robert, and Mark Richards. Property Law 2017-2018. Oxford University Press, 2017.
3 Goymour, Amy, Stephen Watterson, and Martin Dixon, eds. New Perspectives on Land Registration:
Contemporary Problems and Solutions. Bloomsbury Publishing, 2018.
4 Mortgage Express v Lambert [2016] EWCA Civ555; LRA 2002, s 116
5 Peiró, Nicolás Nogueroles, and Eduardo J. Martinez García. "Blockchain and Land Registration
Systems." European Property Law Journal 6.3 (2017): 296-320.

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must be in actual occupation of the property at the time of transaction regarding such
property took place6. In the case of Paddington Building Society v Mendelsohn7, the
defendant claimed that according to the provision of section 70(1)(g) Land Registration Act
1925, a person who is in actual occupation of land, his or her interest over the property can
eliminate the right conferred by a registered disposition. In this case, the defendant who was
in actual occupation of the land claimed that her equitable interest will override the charge of
the building society. The court held that, if a person knows while granting an interest over a
property that such intended interest is likely to override their interest from that property, they
cannot claim t such defenses of overriding interest. In another case of Williams & Glyn's
Bank Ltd v Boland8, it has been held that equitable interest created beneath the trust did not
override.
Overriding Interests is considered as an exception over the basic principles and
guidelines of land registration. Firstly, it is an exception to the ‘Mirror Principle’ doctrine
which elaborates that the land registry should be an inclusive and accurate proof of the title
and further recognized or stamped the right of a person over a property. Further, the rule
states that an interest holder should go for the registration of the property, to ensure or bind
the purchaser for value. Therefore, overriding interests are difficult from the land registration
point of view as it attaches the purchaser even though their rights do not appear on the
register. In the case of Pettitt v Pettit9t, it has been held that overriding right over a property
in respect of an equitable co-ownership is deemed to be proved by submitting proper
evidence, as in the absence of its mention in the registered title, finding the existence of such
right is difficult. In another case of Ferrihurst LTD v Wallcite10, it has been held that the
plaintiff’s overriding interest in respect of the property was cannot be discovered because his
6 Abbey National BS v Cann [1991] 1 A.C. 56
7 Paddington Building Society v Mendelsohn (1985) 50 P & CR 244
8 Williams & Glyn's Bank Ltd v Boland [1981] AC 487, 504
9 Pettitt v Pettitt [1970] AC 777
10 Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355; [1999] 2 WLR 667

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real occupation expanded only to a part of that concerned property. This complexity
regarding overriding interests is the main concern for the Law Commission's
recommendation of a decrease in their scope and result. This recommendation has been
envisaged under Schedules 1 and 3 of the LRA 2002. According to Schedule 1 of the LRA,
2002, an overriding interest can come into picture in opposition to a first registered proprietor
or according to Schedule 3 of the LRA, an overriding interest can further come into picture
against such a person who has become the registered owner due to the transfer of title that is
already registered. In the case of Kling v Keston Properties Ltd11, it has been held by the
court that the plaintiff’s overriding right of preemption in respect of a garage gets precedence
over a 99-year lease that has been awarded to a third party.
Two lists are envisaged in schedule 1 and schedule 3 of the LRA 2002, which
specifies those interests that can be overridden. The difference between these two lists is that,
when land is said to be registered for the first time, such registration is not proposed to alter
the precedence of such interests. The listing of interests that overrides the first registration is
way more wide-ranging than those which apply to registered dispositions.
Therefore, it can be said that Overriding Interests not only clinch on those interests
which are discoverable upon an examination of the land before purchase but further include
those interests which cannot be identified by the interest possessor and thereby cannot
register the same. These interests are sometimes categorized as informal interest due to the
misdemeanors of the defendant.
11 Kling v Keston Properties Ltd (1985) 49 P & CR 212

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2)
Issue:
 Whether the terms of the Agreement made between Joyce, Carlos and Faye are of a
tenancy or a License?
 Whether the agreement follows all requisites of a valid license over a property?
 Whether the Ivy cottage is tenanted for dwelling purposes to Carlos and Faye?
 Whether the terms of the contract stated about elimination on the tenancy of both the
tenant in case of failure of one to stay at the premises is valid according to the
Tenancy Act?
 What is the nature of the renting of the whole arrangement?
 What is the nature of tenancy that exists between both Carlos and Faye?
Rule:
The provision relating to a tenancy agreement and license agreement has been
discussed in this case. Further, the provision of periodic tenancy under the Land and Tenant
Act, 1985 has been discussed and provision relating to giving notice in case of vacating the
tenanted premises by both the landlord and tenant has been discussed further. In addition to
this nature of tenancy between two tenants under the Law of Property Act, 1925 has also
been discussed.
Analysis:
In this case, Joyce entered into a license contract for the tenant with Faye and Carlos,
the tenure for which is not specified under the contract. However, it can be said to be more of
a period contract as envisaged under the Land and Tenant Act, 198512. It can be said that such
12 Pascoe, Susan. "Periodic tenancies subject to a fetter on the tenant-doctrinal dilemmas?." The Conveyancer
and Property Lawyer 82.2 (2018): 119-132.

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an agreement is in the form of a restrictive covenant. However, the main thing to be
considered in this case is that Faye and Carlos is a licensee in this case and Joyce is the
licensor. The idea behind entering into a license contract other a lease is that, in case of a
license contract, the whole right over the land stays with the licensor, which is absent in case
of a lease agreement. In the case of Street V Mountford, the court held that the main
difference between tenancy and license in respect of an agreement lies in the exclusive terms
of ownership in respect of the land. In the present case, Joyce asked Faye and Carlos to
vacate the land as they used to party till late night and the complaint of nuisance has been
made by the neighbors of Joyce. Further, there exists a restrictive covenant in the license
contract which stated that if one from Frey or Carlos leaves the premises before the end of the
university year, the owner can give the property on rent to another owner. Firstly, it is to be
mentioned that, as Carlos and Faye, both have signed a different agreement while entering
into a tenancy, it is not appropriate to remove one owner in the case of the absence of
another. Furthermore, there was not any joint tenancy between them according to the
provision of the Law of Property Act, 1925 and such has not been referred in the agreement.
Therefore, if one tenant leaves then the owner can bring another in his place, irrespective of
canceling of the whole tenancy. However, in this case, Joyce asked both of the tenants to
leave the house on the ground of misconduct by them. It is to be mentioned that, neither a
tenant nor a licensee can be bodily ejected from the possession of a property without the
proper order of the court. Where a court order has been acquired and the dweller has not
vacated, then such order must have been implemented by the Enforcement of Judgments
Office. Any different attempt to recover the possession of such a dwelling against the
dweller's conduct is said to be unlawful. In case of a license tenancy, even if the owner gives
such an impression to the tenant that there only exists a license over such property, but in
fact, there exists a valid tenancy between the licensor and licensee. In the case of Ashburn

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Anstalt v Arnold13, the court held that a license can be said to be tenancy when the tenant has
exclusive right over the tenanted premises, that is to prevent other from entering into the
property or allow the landlord in specific instances for meter checking or repairing something
over the property14. Therefore, it can be said that, though the Joyce had retained a set of the
key of the tenanted premises and also preserve the right to go to the property in case of
emergency, it is to be said that, the arrangement between Joyce, Carlos and Faye is more of
tenancy than of license. On the other hand, Joyce gave the Ivy cottage to Carlos and Faye for
dwelling and she stays in a completely separate home from that cottage. Therefore, such an
arrangement cannot be said to be a license15. Relying upon such facts, it can be said that,
Joyce for the purpose to remove both the tenants, needs to give proper notice to Carlos and
Faye to vacate the Cottage according to the provision of Landlord and Tenant Act, 1985.
Therefore, Carlos has signed a license agreement which is more of a tenancy agreement.
Therefore, he can ask for protection under the Tenancy Act as well as The Unfair Terms in
Consumer Contracts Regulations against the landlord16.
Conclusion:
Therefore, it can be concluded that Joyce can be held guilty for the inclusion of unfair
terms over the rented property as the clause and nature of the agreement is more of a tenancy
than a license.
13 Ashburn Anstalt v Arnold [1988 EWCA Civ 14
14 Baker, Slayde. "To Lease or License: That Is the Question." Ct. Uncourt 6 (2019): 2.
15 Barroso, Chloé. "Landlord-Tenant Disputes: Towards the End of Court Litigation through Alternatives."
(2018).
16 Ruhl, Giesela. "The Unfairness of Choice-of-Law Clauses, Or: The (Unclear) Relationship of Art. 6 Rome I
Regulation and the Unfair Terms in Consumer Contracts Directive." Common Market Law Review 55 (2018):
201-224.

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Bibliography:
Books and Journals:
Abbey, Robert, and Mark Richards. Property Law 2017-2018. Oxford University Press,
2017.
Ashburn Anstalt v Arnold [1988 EWCA Civ 14
Baker, Slayde. "To Lease or License: That Is the Question." Ct. Uncourt 6 (2019): 2.
Barroso, Chloé. "Landlord-Tenant Disputes: Towards the End of Court Litigation through
Alternatives." (2018).
Dixon, Martin. "Fraud, rectification and land registration: a choice." (2017).
Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355; [1999] 2 WLR 667
Goymour, Amy, Stephen Watterson, and Martin Dixon, eds. New Perspectives on Land
Registration: Contemporary Problems and Solutions. Bloomsbury Publishing, 2018.
Mortgage Express v Lambert [2016] EWCA Civ555; LRA 2002, s 116
Paddington Building Society v Mendelsohn (1985) 50 P & CR 244
Pascoe, Susan. "Periodic tenancies subject to a fetter on the tenant-doctrinal dilemmas?." The
Conveyancer and Property Lawyer 82.2 (2018): 119-132. Kling v Keston Properties Ltd
(1985) 49 P & CR 212 Abbey National BS v Cann [1991] 1 A.C. 56
Peiró, Nicolás Nogueroles, and Eduardo J. Martinez García. "Blockchain and Land
Registration Systems." European Property Law Journal 6.3 (2017): 296-320.
Pettitt v Pettitt [1970] AC 777

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Ruhl, Giesela. "The Unfairness of Choice-of-Law Clauses, Or: The (Unclear) Relationship of
Art. 6 Rome I Regulation and the Unfair Terms in Consumer Contracts Directive." Common
Market Law Review 55 (2018): 201-224.
Williams & Glyn's Bank Ltd v Boland [1981] AC 487, 504