Systems of land ownership
In England and Wales there are two recognised systems of land ownership, these are: The registered system or registered land and the unregistered system or unregistered land.
Different rules apply to both registered and unregistered land so the first point to establish is whether the land in question is registered or unregistered.
The difference between Registered and Unregistered land
Unregistered land is land which the title is not registered but it does have its own system of registration which allows interests such as an easement to be registered and therefore protected.
The main difference between registered and unregistered land lies in the way a person proves their ownership over the land. Before the new system of registration the only way to prove ownership is by looking at the title deeds and carrying out searches and inspections of the land. This remains the case regarding unregistered land.
In cases regarding registered land, there is a single, state-guaranteed register that provides evidence of title as it stands at any given time.
Any person who suffers a loss as a result of a mistake on the register will be entitled to be indemnified for that loss.
Unregistered land: The enforceability of third party rights
All legal estates and interests in land are automatically binding on the land over which they exist. Every person who comes into ownership or occupation of that land will do so subject to all the legal rights attached to it. The only exception to this rule is a legal mortgage over the land where the documents of title have not been deposited with the lender.
Land charges are divided into categories by the Land Charges Act 1972 (LCA 1972). There are 6 categories and some of these are further sub-divided . The most commonly used in everyday life are as follows;
Class C (i) – Poise Mortgage
This is basically a legal mortgage which is not secured by a deposit of documents that relate to the legal estate of the property. This is covered under S2(4) LCA 1972.
C (iii ) – General Equitable Charge
C( iv) – Estate Contract – This is basically a contract that is created to convey/ transfer the legal estate in a particular plot of land to another person, by the person who has legal ownership over the land they are contracting to convey.
D ( ii) – Restrictive Covenants – ……………………………………………………………………
D (iii) – Equitable easements – An easements is a right or privilege affecting the land which was created on or after the 1st January 1926, and which is equitable only.
Class F – Matrimonial Home Rights – This is also contained in the Family Law Act 1966, s.30, of which confers the following rights on one spouse/ civil partner where the other spouse/ Civil Partner has a beneficial interest/estate or contract in the property or has a right to remain in the property by virtue of any enactment
(a) A right not to be evicted or excluded if already in occupation; and
(b) A right, with the permission of the court, to enter and occupy if not already in occupation.
Effect of Registration
S. 198 of the Law of Property Act 1925, states that the registration of an interest will result in ‘actual notice’ by all parties involved or connected to the property. Anyone who has ‘actual notice’ will therefore be subject to the interests when the land is transferred to them.
The Effect of Non- Registration
The actual effect of non-registration will ultimately be determined by the type of land charge that is in question.
Classes C (i), C (iii) and Class F- Generally these types of land charges are completely void if unregistered as a land charge against potential purchasers.
Classes C (i), D (ii), and D (iii) – Generally these types of land charges are void if unregistered against the purchaser of a legal estate for moneys or moneys worth.
What are Residual Interests?
This category includes all the equitable interests that which are neither registrable as a land charge nor capable of overreaching ( interest will be in the value of the property not the property itself).
Residual interests are subject to the doctrine of notice, basically meaning that they legally bind the whole world except for equity’s darling.
What is Equity’s Darling?
Equity’s Darling is the bona Fide purchaser for value of the legal estate without notice of the equitable interest.
Bona Fide means in good faith. For someone to be considered the Bona Fide purchaser for value of the legal estate without notice, they not only need to have no notice if the existing interest in the land but the lack of knowledge needs to be genuine and honest.
There are many ways in which a person can acquire a piece of land . A person will acquire a piece of land ‘for value’ where they receive money or moneys worth for the property or acquiring through marriage. The value does not need to be adequate to the property.
This is someone who takes the property through an act of the parties rather than by operation of the law.
There are three types of notice: Actual, Constructive and Imputed.
Actual notice is where the person has real notice and understanding of the interest(s) attached to property.
Constructive notice- by way of s. 199(1) (ii) (a) LPA 1925,