S3 & S4 – Registration et al

Registration
parents knew and understood that mortgage was to
be taken
(1) equitable owner cannot set up their interest as
an overriding interest against a mortgagee if
7 City of London Building Society v Flegg the interest is not enforceable inter partes
immediately before
(2) not enforceable if there is consent, even implied
from facts and circumstances (dealing,
encourrging)
[mortgage in trusts]
(1) subrogation of mortgagee whose money is used
8 Equity & Law Home Loans v Prestidge to pay earlier mortgage (has same rights so that
lender can’t avoid them) = second mortgage
gets the priority that the first mortgagee had
9 Thompson v Foy (2009)
(1) Unable to carve out of estate contract a
proprietary right in favour of a third party;
though the equitable right binds
10 Re North East Property (2) Failure to register registrable disposition =
equitable interest (as in s. 27(1))
(3) Recognizes value of unregistered overriding
interests
Scott v Southern Pacific Mortgages (Re unregistered interests which override under para 2 must
North East) be proprietary in nature
2 sons get money from mother and register but assure
her she can live there for as long as she wants; right to
set contract aside, bank already mortgaged property
(1) Equitable right that is a mere equity (like
11 Mortgage Express v Lambert
enforcible contract) will be overreached if bank
deals with 2 sellers
(2) No AP if enquiry made of persons in AP and
they don’t disclose
it is the register itself that is conclusive, irrespective of
12 Parkash v Irani Finance (1970) any statements mad eon an official certificare by an
officer of the registry
Overriding Interests

13 Pettitt v Pettitt (old)
Bull v Bull (1955)
14 Williams & Glyn’s Bank v Boland
Kingsnorth v Tizzard
Lloyds Bank v Rosset
Malory v Cheshire Homes (old)
City of London Building Society v Flegg
Abbey National Building Society v Cann
Re North East Properties
(1) right of equitable co-owenrship binding
automatically
(2) one trustee = can’t overreach
(1) one trustee = can’t overreach
wife has beneficial interest under trust; husband takes
mortgage; no questions asked of wife
(1) shows effect of equitable co-ownership under s.
70(1)(g); can be both:
a. registrable minor interest
b. overriding interest, in in combination with
A.P.
(2) ratio: equitable interest that is not overreached
on a disposition by a legal owner could amount
to an overriding interest under 70(1)(g),
provided that rightholder is in actual occupation
at the time of the disposition
[unregistered land] equitable right that is not
overreached is subject to the doctrine of notice (binds
unless purchase for value without notice)
(1) interest overriding on basis of A.P. must be
founded on a proprietary right
(2) wife renovation = not enough for common
intention constructive trust  no proprietary
right to form basis of A.P. protection
[‘hidden’ occupation]
sale to two trustees
(1) overreaching extinguishes interest
(2) once an interest is overreached, it can’t be
overriding anymore although it could have been
Mrs Cann had given authority to raise money by way of
mortgage if necessary
(1) Proprietary interest + actual occupation + at
time of tranfer = binding within Sched 3, Para 2
and s. 29
(2) Need to have actual ocupation at time of
transfer, not registration
(3) Proprietary right has to be valid and enforcible
under general law before it could bind (i.e.
didn’t consent to disposition, or is estopped)
(4) Mortgage acquisition and registration taken to
be happening at the same time
(1) Can’t carve out interest out of equitable estate
contract right

Royal Bank of Scotland v Etridge (No. 2)
Locabail v Bayfield Properties
Thompson v Foy
Edwards v Lloyds Bank
Fitzwilliam v Richall Holdings
Swift 1st v Chief Land Registrar
Halifax v Curry Popeck
National Provincial Bank v Ainsworth
Ashburn Anstalt v Arnold
Bridges v Mees
(2) Mortgage acquisition and registration won’t
always be taken to be happening at the same
time (if time difference is extreme)
informed consent will protect a lender who suffers from
an equitable interrest that isn’t overreached
equitable owner cannot later rely on that which they
have surrendered by word of deed (i.e. the priority of
the right)
person knew and understood that mortgage was to be
taken
(1) equitable owner cannot set up their interest as
an overriding interest against a mortgagee if
the interest is not enforceable inter partes
immediately before
(3) not enforceable if there is consent, even implied
from facts and circumstances (dealing,
encourrging)
where the legal owner falsely attempts to convey
equitable owner’s consent, the consent is without effect
and disponee doesn’t gain priority (i.e. is bound by
equitable owner’s right)
[obter about void dispositions – undecided clearly]
where a disposition is forged, it is void and therefore
cannot be a “registrable disposition” for the purposes
of s. 29(1) exception
Forged mortgage
(1) {out of context + obiter} forged disposition that
is void can be registrable interest for the
purposes of s. 29 if disponee is registered
(2) Void disposition = mortgagee has no enforcible
security against proprietor
(3) Right to seek rectification under para 1(2)(b) is
capable of amounting to an overriding interest
(when in combination with AP)
this was a forged disposition
(1) [consideration under s. 29] even if parties allege
that consideration passed, court will look at
actual substance (if it’s a sham, no consideration
(2) [obiteer – effect of postponment] M’s equitable
mortgage ceases to be a proprietary right
permanently, only personal right - WRONG
maintenance agreement of deserted wife
right under para 2 must be proprietary, not personal
contractual licences not sufficiently proprietary
A contract to sell to X, but then sold to B, who registered
estate contract = equitable property right; with actual
occupation, it is overriding

Williams & Glyn’s Bank v Boland
Equity & Homes Loans v Prestidge
Link Lending v Bustard
Williams & Glyn’s Bank v Boland
Abbey National BS v Cann
Lloyd v Dugdale
Hypo-Mortgage Services v Robinson
Strand Securities v Caswell
Malory v Cheshire Homes
Thompson v Foy
AIB Group v Turner (2015)
Bank of Scotland v Hussain
right under trust is a property right, and with actual
occupation, it binds mortgagee (if no inquiry is made as
to it)
[SUBROGATION]shows that the full implications of
delicate balancing purchaser with occupier still being
worked out = priority of a prior lender can be enjoyed
by mortgagee who provides funds for payment of first
mortgage
woman with mental illness, capable of recover, visited
every week, while detained in psychiatric unit
[Actual occupation] = no general test, nees to take into
consideration permanence, continuity, intention to return
and occupy
[actual occupation] living on the premises; ‘actual
occupation’ are plain English words
[actual occupation] (1) caretaker or representative of
company can occupy
(3) More than mere fleeting presence
[actual occupation] presence is that of an agent of a
company = not occupation
[actual occupation] children living with parents are not
in actual occupation because their presence is wholly
explained by that of their parents
[actual occupation]
(1) Actual occupation by licensee is not AP by
licensor
(2) Mere presence of C’s furniture is not usually AP
(not always)
[actual occupation] if land is derelict and unusable, AP
can be established through minimal acts, such as fence
around plot to keep out intruders
[actual occupation] person doesn’t cease to be in AP
because away, but there must be continuing intention to
return
living in cottage, consent to first mortgage, subrogation
(1) Didn’t have property right bcs she didn’t think
she had one
(2) Wasn’t in A.P. at time of second mortgage bcs
partly living in barbados
(3) Right of first mortgage (consented to)
subrogated
(1) Can’t claim overriding interest (under s. 70(1)(g)
if aware of mortgage and of the fact that you
would be bound by it
(2) Actual occupation = intention to return and
occupy (endorses Bustard)
 (1) [actual occupation] actual use is not enough;
mere usage of an easement is not AP of servient
land
Chaudhary v Yavuz (2011) (2) Schedule 3, para 3 expressly excludes
equitable easements from being overriding, so
the attempt to support it with actual occupation
failed in this case
equitable estoppel easement falls is within set of
15 Celsteel v Alton
“equities” that is a property right
[consequences of overriding] interest is overriding so far
16 Ferrihurst LTD v Wallcite
as relating to land of which is in actual occupation
(1) unregistered right of preemption over garage
takes priority over 99-year lease granted to
third paty and registered
17 Kling v Keston Properties (2) [actual occupation] parking car in garage is
enough
 Confirms irrelevance of notice-based doctrines
(1) actual occupation must be apparent occupation
(2) [inquiry + non-disclosure exception] B must
18 Hodgson v Marks
inquire of X, not A about their property right to
fall within exception
[inquiry + non-disclosure] sometimes it might be
Begum v Issa
reasonable not to disclose interest
19 Hunt v Luck
(1) overreaching of equitable interest from contract
by dealing with two sellers
20 Mortgage Express v Lambert
(2) if overriding = won’t be able to claim indemnity
in case of rectification
mother that paid 50% of price, but had no express
beneficial interest + mother knre and intended that
mortgage was to be granted
[implied waive priority through conduct]
Paddington Building Society v
(1) Overriding interest must be founded on an
Mendelsohn
interest that has priority over transfer = had no
interest before mortgage, so can’t claim against
mortgagee who enabled you to gain the interest
(2) Can impliedly waive priority over mortgagee
protected tenancy created after mortgage creation but
Barclays Bank v Zaroovabli before mortgage registration (i.e. not one parcel – but
this took 6y and not based on AP)
Direct, Conscience-Based Liability
bought land subject to X’s rights
(1) Even where seller sells subject to adverse rights,
21 Lloyd v Dugdale there is no general rule that constructive trust
imposed
(2) Conscience must be affected

Ashburn Anstalt v Arnold
22 Chaudhary v Yavuz
23 Groveholt v Hughes
Binions v Evans
Alteration of the Register & Indemnity
Swift 1st v Chief Land Registrar (2015)
Fitzwilliam v Richall Holdings
Ajibade v Bank of Scotland*
Stewart v Lancashire Mortgage
Corporation*
Paton v Todd
Odogwu v Vastguide
(3) Assess whether purchaser undertook new
obligation
(4) Contractual licence is not property right
not enough for B to merely agree, but needs to so
conduct himself that it would be unconscionable for
licence to be denied
(1) standard clause in contract of sale of “subject to
rights” does not suffice to bring B under new
obligation
(2) (obiter) direct obligation likely if X would have
protected interest but for B’s promise
(1) Critical question is whether B has undertaken
some new obligation, not merely offered to give
effect to a pre-existing one
(2) Can protect a proprietary interest that failed to
register
more likely to have a direct right if B paid less because
of the promise to give X right
B forged A’s signature to register charge - void
(1) Mistake = forgery means void disposition
(2) Right to rectify = proprietary and can be
overriding, preventing indemnity [Malory (2)]
(3) Indemnity awarded relying on the “forgery
provision in Sched 8 1(2)(b)
(4) Overrules Malory in that A doesn’t retain
beneficial title
Dubai prison, B sold A’s house to C, using forged
signature
(1) Argument that A retained beneficial interest, C
only got bare legal title on trust for A
(2) C gets no indemnity, because no prior value
freehold – freehold - charge
[three parties – wider interpretation of mistake]
wording of Schedule 4 means that correcting a mistake
means undoing all of the consequences of mistake
 Availability of indemnity is relevant
bro forged disposition to himself, then granted charge
[three parties – orthodox view] even though initial
registration was a mistake, the subsequent one is not
due to the effect of s. 58
exceptional circumstances = not merely unusual,
freehold – charge – freehold
supports Ajibade and goes further, saying C’s
registration is also a mistake

Parshall v Bryans
Malory Enterprises v Cheshire Homes
(per incuriam)
Re Chowood
Barclays Bank v Guy
Barclays Bank v Guy (No. 2)
MacLeod v Gold Harp Properties
(2014)
Baxter v Mannion
Walker v Burton
Pinto v Lim
Rees v Peters
Drake v Fripp
Minister of Housing and Local
Government v Sharp
** Murphy v Lambeth BC (2016)
** Patel v Freddy’s (2017)
(1) s. 58 makes registered proprietor conclusive,
even if underlying transaction is voidable (two-
party)
(2) pure error at time of registration= mistake
forged disposition only transfers bare legal title, not
beneficial title, which w/ AP can bind purchaser
if already bound, can’t claim indemnity because no loss
(pre 2002)
freehold – freehold - charge
[three parties] C’s registration is not a mistake bcs. By s.
58, B was legal owner and under s. 23 had power to
deal with the land
Lord Neuberger – C’s registration is part and parcel of
the initial mistake
Lease removed by false claim = mistake
[priorities] rectification can e
registered owner was in possession
(1) ‘mistake’ doesn’t imply fault
(2) Unjust under para 3, because there was a
mistake
(1) Predudicial = affects value of land, removes
land from title, removes or adds proprietor
(2) [possession defence] possession = physical,
varies according to type of land
Amount of indemnity under claims for loss from
rectification (1) or from mistake before rectification (2)
is value of land before rectification is ordered
Restrictive covenant
[unjust condition when in possession] if indemnity doesn’t
adequately compensate, it is sufficiently unjust for
rectification
Recognition of pre-existing boundary incorrectly shown
on register is not prejudicial
can sue Land Registry in negligence
(1) Is owner in possession [para 3] = if no, can
usually rectify
fraudster sold and sub-sold building to Freddy’s
(1) If owner is in possession, can only rectify if
consents, has contributed by fraud or lack of
proper care
(2) Failing to check identity is not lack of proper
care