overreaching land law essay

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LAND LAW Final Essay - SUMMATIVE 67%

Land law (law-5008a), university of east anglia.

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Overreaching is a defence mechanism that shields purchasers against the rights under trusts, of land, allowing purchasers to take the property free from such trusts. this defence, mechanism is warmly welcomed in land law to protect the buyer; nonetheless, it creates a, significant imbalance between dynamic and static security. '‘land is intrinsically valuable,, but some are more valuable than others 1. for one, it is a family home, while for another, it is, a financial asset. in terms of the statement, the purchaser should be protected, but not to the, extent above all other concerns, favouring ‘the purchaser at the expense of the beneficiary.", as a result, there should be a balance for the protection of purchasers and, more crucially,, those who hold a beneficial interest in the property, as they are the most vulnerable party, under land law due to a lack of procedural protections., ‘overreaching is in favour of the purchaser at the expense of the beneficiary’, the curtain principle is one of the underlying principles in the land registration system that, must be addressed while discussing the issue of overreaching., the land register ‘should reflect the totality of the rights and interests concerning the title of, registration. however, there is a ‘crack in the mirror’ 2 as hayton describes which reveals the, role of the curtain principle that draws across the register against any trust, hence why, beneficial interests are hidden from registration. it can be argued that the main aim of the, principle is to ‘preserve dynamic security’ 3. this is captured by the doctrine of notice in s., lra 2002 4 , however, this excludes interest under s lra which cannot be protected by, notice, in particular interests under a trust of land 5. as a result, these equitable rights against, “the bona fide purchaser without notice” are not enforceable. if a purchaser or mortgagee can, establish, they fall under as “equity’s darling’ without notice it enables them to take free of, equitable interest, yet again the beneficial interests are not protected., in comparison to how common homeownership is now, the underlying economic background, at the time of the early land registrations centred on land being "more of an investment than a, 1 coutts p, “the value of land” (all content rssjune 7, 2021) &lt;, datacenterdynamics/en/opinions/the-value-of-land/&gt;, 2 hayton dj, registered land. 3. ed (sweet &amp; maxwell 1981) p, 3 overreaching- getting the right balance cahill, dermot ...”, &lt;research.bangor.ac/portal/files/17611654/2017_overreaching_getting_the_right_balance.pdf&g, 4 land registration act 2002 s 32., 5 land registration act 2002 s 33., home" 6. the absence of beneficiary protection dates back to the lord cranworth bill of, 1853, which alluded to the concept that if beneficiaries are unable to protect their interests,, they will lose them 7. however, the current issues we face for protecting equitable interests, under the trust are as follows: first, beneficial interests cannot be registered; second, these, beneficial interests can be overreached under s lpa 1925 by simply paying the purchase, price to two or more trustees or trust cooperation 8. third, even if they could be registered,, many think that registering all beneficial interests would be an administrative burden,, especially since equitable interests can originate informally, and many people are unaware of, them. it would be incredibly unjust if the law obliged persons who are unaware of their, beneficial interest to register, particularly if they are in actual occupation of the land could, risk losing their house. this unfairness can be demonstrated in the case of city of london, building society v flegg 9 , as the house of lords ruled that the flegg’s interest had been, overreached and that their rights were limited to the proceeds of the sale. from this case, it, illustrates the detachment of a beneficial interest once overreaching has operated, which, becomes proceeds of the sale with no interest in the land. furthermore, overreaching is, embraced with open arms in land law to protect buyers. this emphasises the disparity, between dynamic and static security because overreaching occurs regardless of whether the, purchaser is aware of the third party's interest or not under s lpa 10 , allowing the 'freeing' of, the land from any beneficial interest at the expense of others, such as the fleggs, who are left, with nothing., reforms: how to achieve a ‘fairer equilibrium’, it may be argued that protecting individuals with beneficial interests is just as vital as, protecting the purchaser. there is a misalignment between land's opposing goals of dynamic, and static security. furthermore, we will evaluate owen and cahill's recommendation in, overreaching – getting the right equilibrium to achieve this balance 11., (1) the registration of trust, 6 overreaching- getting the right balance cahill, dermot ...”, 7 anderson js, lawyers and the making of english land law: 1832-1940 (clarendon press 1992), 76– 77, 8 law of property act 1925, s 2., 9 city of london building society v flegg [1988] ac 54, 10 law of property act 1925 s 2 (1)., 11 gwilym owen dermot cahill overreaching - getting the right balance p, know they own the property. it might be argued that registering a beneficial interest should, not be mandatory because many people are unaware, they have a beneficial interest., therefore, giving people the opportunity to act on their rights while maintaining the same, system of overriding interest is a notion that might be universally advantageous for both, purchasers and holders of beneficial interest. moreover, if beneficial interests are on the, register, it should not be overreached because doing so would provide no significant, protection for persons with beneficial interests, as they would have paid to have their interest, registered yet still lose it due to overreaching. nonetheless, overreaching should not be, discouraged, but retained for overriding interest only if the standards of s lra 2002 18 are, overreaching is a defence mechanism that protects purchasers against the rights of, beneficiaries under trusts of land, at the price of people like the fleggs, who suffer in silence, as their interests are overreached. however, it ‘should not be abandoned.. its entirety 19 , but, rather allow the registration of trust, although at the cost of breaching the curtain principle to, achieve a "fairer equilibrium" between dynamic and static security. this protects not only the, purchaser but also those who have a beneficial interest in the land as a home, to keep up with, modern trends., part a word count (1308), berenice should be the legal owner of the 123 abc street property under arnold's will., candice's spiteful acts, on the other hand, resulted in the disposition of 123 abc street to, daevisha, who is now the registered proprietor and in actual possession. berenice's cause of, action might be (i) to argue that there was a mistake on the register and be granted, rectification to change the registered title to the legal estate; or (ii) to claim an indemnity., 18 law of property act 1925 s 27., 19 “overreaching- getting the right balance cahill, dermot ...”, &lt;research.bangor.ac/portal/files/17611654/2017_overreaching_getting_the_right_balance.pdf, &gt; p, firstly, it is stated that candice registers herself as the proprietor of the property, no other, information is provided on how she became the registered proprietor of the property. from, the material facts, the land is unregistered and no ‘triggering event’ occurred under s as, compulsory registration 20. it is reasonable to suggest that candice voluntarily registered the, property, which is why it can be argued that the registration was fraudulent. candice would, need to prove ‘good root of the title’ under s lpa 1969 21 which are bundles of title deeds, establishing unbroken ownership back over 15 years 22. if candice was able to register, herself as the proprietor of the property after arnold goes into a hospice, it was likely due to a, false identity for candice to prove she resided there. due to this being the first registration of, unregistered land, if candice can prove either ‘good root of the title’ or ‘statements of truth’, and know enough of his personal life which she does as they have a friendship is likely for it, to be possible to register herself as proprietor of the property. if this was the case, then, candice would have acted fraudulently and her being the registered proprietor would be a, issue 1: was there a mistake, the question in schedule 4 s is 23 whether there has been a mistake or prejudicial effect on, the title. however, it fails to define the term "mistake." to assess whether there has been a, mistake depends on the ‘its effect at the time of registration 24., the disposition made from candice to daevisha could be claimed to be a voidable, disposition. at the time of registration, there were no mistakes by the registrar and the, transaction was correct and valid at the time it was made. even if the documents were, obtained fraudulently or forged it would not be deemed a mistake to enter daevisha ‘the, disponee as the proprietor of the estate’ 25 .this is reflected in antonie v barclays bank plc &, ors 26 , the high court emphasised even though the vesting order that entitled the defendant to, enter as registered proprietor was made based on false documents the disposition itself was, valid. the registration of the defendant as proprietor was not a mistake. equally, daevisha is, 20 land registration act 2002, 21 law of property act 1969 s 23., 22 statutory declarations act 1835., 23 land registration act 2002 schedule 4 (1)., 24 f. rtb and roper rb, ruoff &amp; roper on the law and practice of registered conveyancing (sweet &amp;, maxwell 2003) 46/5– 6, 25 f. rtb and roper rb, ruoff &amp; roper on the law and practice of registered conveyancing (sweet &amp;, 26 antoine v barclays bank plc & ors [2018] ewhc 395 (ch) (02 march 2018), inherit the property, it would be wrong to deprive them of it for sentimental reasons, and it, would have arguably harmed more people if he had a family. berenice, on the other hand, is, his neighbour, thus she would need to demonstrate how her interest in the land is strong, enough that it would be unjust not to rectify., issue 4: will indemnity be available, an indemnity will be granted to a person who suffers loss arising from alteration or, rectification of the register under schedule 8 31. if daevisha owns the land under s 32 then, daevisha has a defence to rectification under schedule 4 para 3(2) 33. the register will, therefore not be rectified, and she could be entitled to keep the land. therefore, under, schedule 8 para 1 (1)(b) 34 berenice would be entitled to an indemnity due to the loss of the, property made by a mistake., issue 5: what will be the amount of any indemnity, the amount given is determined by its worth at the period specified in schedule 8 para 6(b),, which is "when the mistake that caused the loss was made." 35 according to the relevant facts,, the worth of the property at the time the mistake was made was £400,000, which is the, amount berenice is expected to get., in conclusion, berenice has a better claim for an indemnity rather than seeking to get the, registrar to alter and remove daevisha as the registered proprietor which the court is unlikely, part b word count (1109), 31 land registration act 2002 schedule 8., 32 land registration act 2002 s 131, 33 lra 2002 sch 4 paras 3(2), 6(2)., 34 land registration act 2002 schedule 8 para 1 (1)(b)., 35 land registration act 2002 schedule 8 para 6 (b)., • “overreaching- getting the right balance cahill, dermot ...”, &lt;research.bangor.ac/portal/files/17611654/2017_overreaching_getting_the_ri, ght_balance&gt;, • coutts p, “the value of land” (all content rssjune 7, 2021), &lt;datacenterdynamics/en/opinions/the-value-of-land/&gt;.

Multiple Choice

Module : Land Law (LAW-5008A)

University : university of east anglia.

Discover more from: Land Law LAW-5008A University of East Anglia 28 Documents Go to course
More from: Land Law LAW-5008A University of East Anglia 28 Documents Go to course