Protection of Title

How can I register my land?

The Two systems of land ownership that exists in England and Wales:

  1. The registered system or registered land

  2. The unregistered system or unregistered land

The main difference between the two systems lies in the way in which a person proves his ownership of (i.e. title to) land.  Before the introduction of registration of title, there was only one way to establish the seller’s right to sell a property. Purchasers had to satisfy themselves from the title deeds, searches and inspection of the land that the seller had power to sell the land, and that it was subject to no undisclosed obligations. That remains the case with properties which have not yet been registered.

Unregistered land

Unregistered land is land to which the title is not registered but it has its own system of partial registration (under the Land Charges Act 1972) for other rights and interests affecting the land. 

How a third person can enforce and protect their rights in Unregistered land

By s.198, LPA 1925, registration constitutes ‘actual notice’ to all persons and for all purposes connected with the land affected.

By using the methods below a third person can protect their rights in unregistered land by registering them and therefore giving ‘actual notice’ of their interest.

Legal Rights

All legal estates and interests are automatically binding on the land over which they exist.  Every person who comes into ownership or occupation of that land, takes the land subject to all legal interests which attach to it.  The only exception to the rule is the puisne mortgage, i.e. a legal mortgage over land where the documents of title have not been deposited with the lender.

Land Charges

Land Charges are divided into 6 categories by the Land Charged Act 1972, Some of these are then sub-divided.  

  • Class C(i)  – puisne mortgage, i.e., ‘a legal mortgage which is not secured by a deposit of documents relating to the legal estate affected’

  • C(iii) – general equitable charge 
  • C(iv) – estate contract, i.e., a contract to create or convey a legal estate in land made by a person with, or entitled to, a legal estate.  

  • D(ii) – restrictive covenant, other than one between lessor and lessee, entered into after 1 January 1926.

  • D(iii) – equitable easement, i.e., an easement, right or privilege affecting land which was created on or after 1 January 1926, and which is equitable only. 

  • Class F – ‘matrimonial home rights’, contained in the Family Law Act 1996, s.30 of which confers the following rights on one spouse/civil partner where the other spouse/civil partner has a beneficial estate or interest or contract in a dwelling or has a right to remain in occupation of a dwelling by virtue of any enactment:

  • A right not to be evicted or excluded if already in occupation; and

  • A right, with the leave of the court, to enter and occupy if not already in occupation. 

What are Residual Interests?

This category incorporates all equitable interests which are not registerable under the LCA 1972 nor overreachable ( where your interests transfers to the money from proceeds of sale rather than staying with the land itself).  Such interests are subject to the doctrine of notice, i.e. they bind the whole world except Equity’s Darling: the bona fide purchaser for value of the legal estate without notice of the equitable interest.  

  • Bona fide = in good faith.

To satisfy this requirement and therefore not be bound by an unknown  and unregistered interest it must be show not only an that you didn’t know of any interest in the land, but that the absence of notice was genuine and honest.

  • Purchaser

‘one who takes by act of the parties rather than by operation of law’.  This means that the property has been transferred in the appropriate way by the previous owner, and it has not been vested in the purchaser automatically by operation of some rule of law (e.g. the vesting of a bankrupt’s property in his trustee in bankruptcy or the deceased’s property in his personal representatives).   

  • For value

A purchaser may acquire the land by buying it or under a will, or by way of a trust or gift.  Equity will only assist a person where they have acquired the land by providing value.  ‘Value’ means money, moneys’ worth or marriage.  The value does not have to be adequate.  

  • Legal estate

The purchase must be of a legal estate, and not just of an equitable interest.

Without notice

There are three types of notice: actual, constructive and imputed.
  • Actual notice is actual knowledge; a purchaser has actual notice of all matters which he actually knows about, no matter how he came to know of them; he may even discover the truth from a complete outsider . Actual notice does not extend to matters of hearsay.  

  • Constructive notice. By s.199(1)(ii)(a) LPA 1925, ‘a purchaser shall not be prejudicially affected by notice of any…instrument or matter or thing unless it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him.’

  • Imputed notice.  A purchaser is deemed to have notice of an equitable interest if his/her agent has either actual or constructive notice of it. For Example, if your solicitor obtains actual notice of an equitable interest, his/her client is also regarded as having notice of it

The bona fide purchaser will take free of any equitable interests of which s/he does not have notice.  Anyone who later acquires the legal estate from that purchaser also takes free of the equitable interest, even if s/he actually knows about it.