Land Registration for the 21st Century: A Conveyancing Revolution

This article discusses the impact of the overriding interest on the Land Registration Act of UK and its benefits and drawbacks. It also evaluates the efforts of the government to make a balance between the interest of the purchaser and the occupant.

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LAND REGISTRATION FOR THE 21ST CENTURY: A CONVEYANCING
REVOLUTION

Table of Contents
Introduction......................................................................................................................................2
Main body........................................................................................................................................2
Conclusion.......................................................................................................................................9
References......................................................................................................................................10

INTRODUCTION
The land registration Act of UK provides the provision of the overriding interest1. Overriding
interest enables the person to make aclaim on the property without being entering into the title on
the land. The present has a detailed assessment of the impact of the overriding interest which
defeats the main objective of the registered landhasalso been discussed in an appropriate manner.
MAIN BODY
“The overriding interest in the land registration act generally described as “the crack in the
mirror of the title” as they always considered as a defect in the registered title system”2.
Interests whichoverride a registered disposition are interests which provide power to an
individual to take a registered disposition3.
The other person without entering into the registered title on the land can make an assertion on
the land, this is known as overriding interest by which they can claim the rights on the land
without getting any title on the land4. Further according to the section 29(2) (a)(ii) of the land
registration act, although the person is protected under the register the person who has override
interest have the priority on the land5.
Schedule 1 of the land registration act 2002, contained that by the first registration on the land
the purchaser is automatically getting the right on the land even if the registry or the title deed is
1Simon Gardner and MacKenzie. Emily., An Introduction to Land Law. (Bloomsbury
Publishing 2015).
2Mark Davys., Land Law. (Macmillan International Higher Education 2017).
3‘Overriding Interests in Registered Land’.(2015)
<http://e-lawresources.co.uk/Land/Overriding-interests.php>accessed 18 November 2018
4Lucy Finchett-Maddock, Protest, property and the commons: performances of law and
resistance. (Routledge 2016).
5Spyridon V. Bazinas ., and Orkun Akseli,., International and Comparative Secured
Transactions Law: Essays in Honour of Roderick A Macdonald. (Bloomsbury Publishing
2017).

not given or reversed on that land6. Further,schedule 3 of the land registered act contained that
the subsequent purchaser of the land can claim the rights on the land even if the existing register
has a title on the land7. Therefore in several cases in which overriding interest may lead to an
adverse impact on the property transaction8.
As per the provision of Para 2 of Schedule 3 which is related to the overriding interest of the land
who has the actual possession on the land9. This Para states that for the attainmentof the benefit
of the overriding interest, there must be the real interest, along with the possession of the land by
the person. Moreover, same was concluded by the court in case of law National Provisional Bank
Ltd V Ainsworth (1965) AC 117510.
Further, in the case of Abbey national building society v Cann (1991) AC 56, held that as per the
section 70(1)(g), date of completion of the transaction was considered as the applicable time for
the actual occupation instead date of registration11.
Overriding interest consist of lease for the term period of seven years or less than seven years,
legal easement, rights which are not provided under any law in respect of the sea or wall of river,
right related with the repair and maintenance of the church, mines and minerals, local land
charge, public right way and along with many other rights.
6Simon Cooper., and Emma Lees ., ‘Interests, powers and mere equities in modern land
law’ Oxford Journal of Legal Studies [2017] 37.2, p435,460.
7Louise Gullifer and Akseli,Orkun., Secured Transactions Law Reform: Principles, Policies
and Practice. (Bloomsbury Publishing 2016).
8David Cowan., O'Mahony Lorna Fox.,, and Cobb Neil., Great Debates in Land Law.
(Macmillan International Higher Education 2016).
9Peter Hetherington .,Whose Land is Our Land?: The Use and Abuse of Britain's Forgotten
Acres. (Policy Press 2015).
10Richard Clements., and Abass Ademola., Complete Equity and Trusts: Text, Cases, and
Materials. (Oxford University Press 2018).
11Mary LaFrance., Lange L. David and Myers Gary., Intellectual Property: Cases and
Materials. (WEST ACADEMIC PUBLISHING 2018).

However, due to the unregistered system in the Land Registration Act make the significant
burden on the purchaser with respect to the inspection of the title deed and the doctrine of
notice12. Because of the overriding interest, the purchaser cannot be able to identify the person
who has the interest in the land by the normal inquiry and inspection of the register13. Along with
this the overriding interest also makes the significant impact on the rights of the purchaser
because of the importance isgiving to the person who has the interest without being entering the
name into the registered deed14. Therefore the overriding interest significantly defeats the
purpose of the land registration act15. Since the main objective of the land registration act is to
evaluate the ownership, possession and the rights of the land and also provide the poof of the
title, facilitate the transaction of sale and purchase of the land and also prevent the illegal
disposal of the land16.On the other hand, the government put the efforts into making the balance
between the interest of the purchaser and the occupant17. The government has recognized that it
is necessary to execute the definite similar needs to acquire of the registered land. Therefore
techniques, application and concentration have changed18.
12Judith Bray., Unlocking land law. (Routledge 2016).
13Joe Sampson., ‘ESTOPPEL AND THE LAND REGISTRATION ACT 2002.’The
Cambridge Law Journal[2016] 75.1 p 21-24.
14Malcolm,Rosalind., Concentrate Questions and Answers Land Law: Law Q&A Revision
and Study Guide. (Oxford University Press 2018).
15GeoffreyParsons, The glossary of property terms. (Estates Gazette 2015).
16Mark,Pawlowski., and Brown james, Adverse possession and the transmissibility of
possessory rights-the dark side of land registration?. (2017).
17Joe Sampson., ‘ESTOPPEL AND THE LAND REGISTRATION ACT 2002.’The
Cambridge Law Journal[2016] 75.1 p 21-24.
18Catherin Boone., ‘Legal empowerment of the poor through property rights reform: Tensions
and trade-offs of land registration and titling in sub-Saharan Africa’ The Journal of
Development Studies [2018] p 1-17.

In the land registration act 2002, the scope and range of the overriding interest got reduced in
schedule 1 as well as in the schedule 319.In this case of Kling v Keston Properties Ltd, can be
referred20.
“Overreaching drives to relocate the rights from the land to the proceeds of sale. Thus, any
interest in land capable does not continue to be protected by actual occupation”21. The statement
was provided by judge in case of City of London Building Society v Flegg.22
Moreover in the case of Hodgson V Marks, as per the section 70(1) (g), actual occupation must
be the apparent occupation, but after the land registration act 2002 this is considered as the
invalid due to the implementation of the equitable principle of constructive notice of the rights of
person in occupation23.Further, it has been evaluated that the criteria of the overriding interest
related with the actual occupation are based on the condition, the purchase or the seller will take
no risk24.
“In order to have overriding status, it is necessary that interest must be a proprietary interest”.
The same was concluded in decision of National Provincial Bank v Ainsworth [1965] AC 1175.
By considering the social and legal requirement, overriding interests are reasonably acceptable
since it leads to the give the priority on the land to the person who did not have the registered
title or the title deed on his/her name25. For instance, it would be appropriate to state that the
19Barbara Bogusz and Roger Sexton, Complete Land Law: Text, Cases, and Materials
(Oxford University Press 2015).
20Caroline Sawyer and Spero Miriam., Succession, Wills and Probate. (Routledge 2015).
21‘Overriding Interests in Registered Land’.(2015)
<http://e-lawresources.co.uk/Land/Overriding-interests.php>accessed 18 November 2018
22Overriding Interests in Registered Land’.(2015)
<http://e-lawresources.co.uk/Land/Overriding-interests.php>accessed 18 November 2018
23Roger Smith., ‘Forgeries and indemnity in land registration’ The Cambridge Law
Journal 74.3 [2015] p 401-405.
24Robert Abbey and Richards B. Mark. A practical approach to conveyancing. (Oxford
University Press 2017).
25Mark P. Thompson and George Martin., Thompson's Modern Land Law. (Oxford
University Press, 2017)

overriding status of customary and public rights are required to be preserved for the important
community advantage which is attained through it, and it would be “argumentative” to expect the
beneficiaries of specified rights to register them adjacent to the burdened land26.
Moreover as per the schedule 3 of the land registration act 2002, third party purchaser
automatically bind by the overriding interest although the third party cannot determine the
person who has the overriding interest on the land by inspecting the register of title or in fact that
the third party purchaserdoes not actually know about the existence of overridinginterest on the
land. On the registered land, the pressure is built on the purchaser to identify whether, on the
land, any person has overriding interest27. In case of Buckinghamshire County Council v Moran
it has been cited that“In case a person claims or utilizes a land by license of owner as well as
through paper title than same cannot be treated as adverse possession against the owner of
paper title.28”Through the enquiry or physically investigation the purchaser of the land has to
identify the overriding interest before the acquiring land. Therefore the burden diminishes the
absolute certainty which is the main objective of all the registered system29.
However, the approach of the overriding interest sometimes leads to pressure under the land
registration act30. Earlier, the duty to make the donation to the repair related with the chancel
church create the overriding interest, however from the October 2013, the purchaser will be bind
on the chancel repair liability only if the liability is registered with the title for that land. Due to
this, it has been analysed that the land registration act is proficient of supposing receivers of
26Anthony Banfield,. Stapleton's real estate management practice, (Estates Gazette 2014).
27Nicholas Blomely, ‘Land use, planning, and the difficult character of property’." Planning
Theory & Practice (2017)18.3 p 351 364.
28Ben McFarlane ., Hopkins Nicholas., and Nield, Sarah.,. Land law: text, cases, and
materials. (Oxford University Press 2015).
29Aladen, Wily., The Law and Land Grabbing: Friend or Foe?. Law and Development
Review, [2014] 7(2), p207 242.
30Ed, Turner., ‘Developing brownfield land: Arguments for a more active local state’. Journal
of Building Survey, Appraisal & Valuation [2016] 5.3 p230 239.

overriding interest to safeguard theirinterest by way of registration31. Moreover, the same
concept should be applicable in case of franchises and rights related to the mines and minerals in
land registered before 1898;however, now it became very old32. “Factual possession represents
significant degree of physical control. Thus, the owner of the land and individual intruding for
land cannot be in possession of the land at same time. Moreover, attempting for factual
possession can be stated as that alleged processor has been dealing with land in question33”.All
the rights should be registered under the land registration act otherwise overriding interest is
defeated34.
CONCLUSION
On the basis of the above analysis, it has been seen that overriding interest provide the several
benefits to the person even if the title of the land is not registered on his/her name. Although in
some cases overridinginterest is beneficial for the community, however sometimes it may lead to
a negative impact on the person who has the title of the land. Further, it is very difficult for the
person who is purchasing the land, identifying the person who possesses the overriding interest
in the land. Due to this difficulty, the government impose the various requirements through
which the purchaser enable to evaluate the overriding interest on the land. The government also
try to make the balance between the interest of the land and occupier of the land.
31Liz Alden, ‘Collective Land Ownership in the 21st Century: Overview of Global
Trends.’Land 7.2 (2018) p 68.
32‘Still an Overriding Concern’.(2016) <https://wslaw.co.uk/insight/still-overriding-concern/>
accessed on 18 November 2018
33Mary,LaFrance., Lange L. David and Gary Myers., Intellectual Property: Cases and
Materials. (WEST ACADEMIC PUBLISHING 2018).
34Ben,McFarlane., Hopkins,N., and Nield,, S.,. Land law: text, cases, and materials. (Oxford
University Press USA 2015).

REFERENCES
‘Overriding Interests in Registered Land’. (2015) <http://e-lawresources.co.uk/Land/Overriding-
interests.php>accessed 18 November 2018
‘Still an Overriding Concern’.(2016) <https://wslaw.co.uk/insight/still-overriding-concern/>
accessed on 18 November 2018
Abbey, R. and Richards, M.B., A practical approach to conveyancing. (Oxford University Press
2017).
Alden Wily, L. ‘Collective Land Ownership in the 21st Century: Overview of Global
Trends. Land’, (2018) 7(2), P.68.
Banfield, A. Stapleton's real estate management practice. (Estates Gazette 2014)
Bazinas, S.V. and Akseli, O. International and Comparative Secured Transactions Law: Essays
in Honour of Roderick A Macdonald. (Bloomsbury Publishing 2017).
Blomley, N., ‘Land use, planning, and the “difficult character of property’ Planning Theory &
Practice (2017) 18.3:p 351-364.
Bogusz, B. and Sexton, R., Complete Land Law: Text, Cases, and Materials. (Oxford University
Press, USA, 2015).
Boone, C., ‘Legal empowerment of the poor through property rights reform: Tensions and trade-
offs of land registration and titling in sub-Saharan Africa’[2018]. The Journal of Development
Studies, pp.1-17.
Bray, J., . Unlocking land law. (Routledge 2016).
Clements, R. and Abass, A., Complete Equity and Trusts: Text, Cases, and Materials. (Oxford
University Press 2018).
Cooper, S. and Lees, E., 2017. ‘Interests, powers and mere equities in modern land law’
[2017]. Oxford Journal of Legal Studies, 37(2), PP435-460.
Cowan, D., O'Mahony, L.F. and Cobb, N., Great Debates in Land Law. (Macmillan International
Higher Education 2016)
Davys, M., Land Law. (Macmillan International Higher Education 2017).
Finchett-Maddock, Lucy. Protest, property and the commons: performances of law and
resistance.(Routledge, 2016).

Gardner, S. and MacKenzie, E., An Introduction to Land Law. (Bloomsbury Publishing 2015).
Gullifer, L., and OrkunA., Secured Transactions Law Reform: Principles, Policies and Practice.
(Bloomsbury Publishing, 2016).
Hetherington, P., Whose Land is Our Land?: The Use and Abuse of Britain's Forgotten Acres.
(Policy Press 2015).
LaFrance, M., Lange, D.L. and Myers, G., Intellectual Property: Cases and Materials. (WEST
ACADEMIC PUBLISHING 2018).
Malcolm, R., Concentrate Questions and Answers Land Law: Law Q&A Revision and Study
Guide. (Oxford University Press 2018).
McFarlane, B., Hopkins, N. and Nield, S., Land law: text, cases, and materials. (Oxford
University Press, USA 2015).
Parsons, G., The glossary of property terms. (Estates Gazette 2015).
Pawlowski, M. and Brown, J., ‘Adverse possession and the transmissibility of possessory rights-
the dark side of land registration?’[2017].
Sampson, J., ‘ESTOPPEL AND THE LAND REGISTRATION ACT 2002’[2016]. The
Cambridge Law Journal, 75(1) p.21-24.
Sawyer, C. and Spero, M., Succession, Wills and Probate. (Routledge 2015).
Sayles, V., Land Law. (Oxford University Press 2016).
Smith, R., 2015. Forgeries and indemnity in land registration. [2015] The Cambridge Law
Journal, 74(3), p.401-405.
Thompson, M.P. and George, M., Thompson's Modern Land Law. (Oxford University Press
2017)
Turner, E., ‘Developing brownfield land: Arguments for a more active local state’
[2016]. Journal of Building Survey, Appraisal & Valuation, 5(3), p 230-239.
Wily, Liz Alden, ‘The Law and Land Grabbing: Friend or Foe?.’Law and Development
Review 7.2 (2014): p 207-242.