3.1.3 The Doctrine of Notice Lecture – Hands on Example
The following questions are designed to test your knowledge about the core elements regarding unregistered land. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.
Always think about the relevant principles, the cases, and what the outcome will be based on how those principles and cases apply to the question.
One of the first challenges in an exam is to recognise that the question you’re being asked is about unregistered land. So by applying this step-by-step approach, you should be able to tell if it is a question regarding unregistered land and what issues you should therefore discuss.
As a quick aide-memoire, you will be on the right track if you remember the following steps:
- Is the land said to be registered? Does the question state if there is a register of title in the Land Registry, or is the title to be found in a “deeds bundle”?
2.Who is claiming what? For example, a purchaser may be trying to purchase unregistered land, or a homeowner may be trying to sell off the property without the knowledge/consent of their estranged partner?
3.Is someone trying to claim an interest? If so, has the interest been registered?
4.If the interest is unregistered? If so, is it something which would fall into one of the exceptions, such as proprietary estoppel or actual notice, and cannot be registered in any event under the Land Registration Act?
5.When contrasting the rights of a purchaser versus someone with unregistered interests, remember what the priority is for the person you’ve been asked to advise, and indicate whether they would be successful in their claim/defence or not.
6.If the question is an essay question about unregistered land, what are the basic elements of unregistered land, and what are the policy arguments for and against retaining unregistered land?
Q1. Alfred has become estranged from his partner Bert. Alfred is the sole paper owner of Chalk House. Bert still visits the property twice a week to help feed the cats, owned by both Alfred and Bert. Alfred decides to abscond and take several of the cats with him. He therefore arranges for an interested purchaser, Debit Bank plc, to inspect the property and value it at a time when Bert is not present. When an agent from Debit Bank attends, they notice all of the cat food tins, and ask Alfred if he has cats. Alfred does not answer, and the representative does not pursue the question any further. Debit Bank duly take steps to purchase the property, saying the property is free of any occupiers. Bert, upon discovering what has happened, tells Debit Bank he has a right to live at Chalk House.
A1. You may be reminded of another case in which the husband had concealed an attempted sale from their estranged partner. Kingsnorth Finance Ltd v Tizard. You may remember in that case that KF were fixed with constructive notice because they had failed to make inquiries that they ought reasonably to have made. Notice that Debit Bank’s representative did make an inquiry. The question is whether the degree to which they made inquiries was reasonable. You may differ with your colleagues about whether it was reasonable or not; the important point is to highlight that this is a relevant consideration. Remember, whichever view you take, answer the underlying question of whether Bert does or does not have a right to live at the property. You may also suggest there is imputed notice, because it is Debit Bank’s agent that attends the property.
Q2. Eleanor is hoping to purchase a property. She is a first-time buyer so is not familiar with the usual risks and challenges. She is considering buying Whiteacre. She has been told its land is unregistered. She seeks advice on whether this would be simpler than purchasing Yellowacre, a neighbouring estate which is said to be registered.
A2. Although presented as a problem question, this could easily be answered as an essay question. You are being asked to discuss the disadvantages of unregistered land from the perspective of purchasers. You need only look at the section above regarding Disadvantages of Unregistered Land. Among those disadvantages, you can discuss how title is established for unregistered land, and point out that it is a complex exercise that is far more complicated and time-consuming than consulting the Land Registry for registered land.
Q3. Florence is intending to buy Greenacre from Harry. Harry’s wife, Irene, has an interest in the property, but she was never named as a joint tenant of the land. Irene would rather stay at Greenacre and doesn’t want Harry to sell it. Harry tells Florence about Irene’s interest in the land and about her wanting to stay at the land. Florence says she will pay more if needed, but she told Harry she was determined to buy the property.
A3. Because this is the interest of a spouse, the question is whether the interest was registered. You will remember, from Midland Bank Trust Co Ltd v Green, that a purchaser is not bound by unregistered interests even where they have notice of that interest. Note that Florence has said she will pay more; this is relevant to the question of whether she is paying the equivalent value for the interest. Remember s.199 of the Law of Property Act 1925.
Q4. Alice has been living at Blackacre for 13 years. She does not hold the paper title; that belongs with Charles. She is not related to Charles in any way. In fact, she has set up her space in Blackacre as a squat. Charles has been aware of her presence at Blackacre ever since she moved in: Alice insisted on first moving in that she had a right to live at Blackacre. Dylan has been using the basement of Blackacre to park his car regularly for about six years. Charles gave him permission to do so, even though Dylan never registered this with the Land Registry. Alice had never been aware of this basement, until just recently. She had in any event only become aware of it after 12 years. Charles is rarely at the property, and upon discovering Dylan’s use of the basement Alice decides to tell Dylan that he can no longer park his car in the basement. Dylan thinks he is in fact allowed to do so.
A4. On reading this question, it should become apparent that Alice has been taking adverse possession of Blackacre. She has been in possession of the property for more than 12 years, and has indicated to the holder of the paper title (Charles) she has taken possession. Therefore, under the Limitation Act 1980 (remember the relevant section?) she has taken adverse possession and has extinguished Charles’s title. But because Dylan has been parking his car before Charles’s title was extinguished, and because she takes possession of Blackacre by operation of law, Alice cannot rely on the bona fide purchaser without notice defence.
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