Dragging Land Law into the 21st Century

Way back, I allowed myself to have a little blogger’s whinge about the plethora of Land Law textbooks that still harp on about those old Land Law maxims about legal rights binding the world and ‘Equity’s Darling’, even though they rarely have relevance nowadays. I won’t go on about it again here but, for those who are interested, see this earlier post.

Recently, I’ve become aware of another issue that keeps rearing its head in student essays, and that concerns overriding interests or, to use the correct phrase under LRA 2002, interests that override. Now I, for one, have to admit to occasionally pining for the good old days of Land law when you could scrawl an exam answer in a mildly illegible hand and, when it came to citing legislation, if you managed something that could be imprecisely interpreted as either ‘LPA 1925′ or ‘LRA 1925′ then you were pretty much guaranteed to get the mark. Not so any more. We have a new Land Registration Act – LRA 2002.

Did I say new? Actually, it’s not that new, is it? More than 10 years have passed since this Act came into force. Some legendary overriding interests have even ceased to be overriding as of 13th October this year. I’m thinking in particular of the chancel repair liability that few people were aware of until the unfortunate Wallbanks happened upon their inheritance in Aston Cantlow.  But I digress… the real problem that is all too apparent when marking essays on the subject of registered land, is that students continually refer to overriding interests under the old s70(1) LRA 1925 and fail to use the current legislation contained in Sch 3 LRA 2002 (assuming we are talking about registered dispositions).

Personally, I’ll admit I’m not a huge fan of modern legislation. I really don’t like these ‘para 2 Sch 3′ type references. They don’t trip off the tongue like good old s70(1)(g) used to (mind you, as I’m noticing now, they are easier to type without all those brackets, so there’s a plus point!) BUT, and this is rather a big ‘but’, they are now the law…so we have to use them. Interests that override have changed, and it’s not just the dumping of some old manorial rights and chancel repair liabilities. The rights of persons in actual occupation no longer include the rights of those in receipt of rents and profits, and there are new conditions attached. Legal leases for 7 years or less (not 21 years) are capable of overriding (again with conditions). Equitable easements no longer override (farewell Celsteel) and only implied legal easements are capable of overriding (with conditions) because express legal easements need substantive registration under s27 and equitable easements require protection by notice.

Significant changes then so why, 10 years on, do students keep making the mistake of referring to good old s70(1)? In my view, that’s another case of blame the textbooks; they always seem to start by explaining the old overriding interests under LRA 1925 and then (cynics would say when the reader has fallen asleep or died of boredom…) they slip in mention of the changes made by LRA 2002. That’s not to say that the LRA 1925 sections could never be relevant, but most exam questions nowadays will deal with fairly recent occurrences and so require use of LRA 2002. Attempts to use the old legislation can lead to significant error (and, perhaps more to the point, ratty examiners!) So, if you are taking a Land law exam, or answering Land law questions at Uni, do bear this in mind and make sure that you are using LRA 2002 (and, incidentally, do refer specifically to Sch 3 if you are dealing with a registered disposition rather than first registration; continued reference to ‘Schs 1 and 3′ is like waving a big red flag saying ‘I don’t know the difference’!) Meanwhile, we can only hope that one day the writers of texts will consider emphasising the current legislation over the historical.

Just one last thing whilst I am rambling on about modernity in Land law. You can take it too far. A friend told me the other day that a certain respected university no longer teaches unregistered land on its Land law course. I won’t name names here as I have not had the opportunity to verify this fact for myself, but I find the suggestion quite shocking (and not just because of the fear that I might shrivel and die if I never again had the opportunity to whinge on about Midland Bank Trust Co v Green again). I find it difficult to believe that unregistered land is yet so insignificant that a new generation of lawyers won’t need to know about it. Only last year I was in the position of having to sell my late mother’s house, a property that last changed hands in 1970 and was still unregistered. I can think of a number of properties on that estate that have been in the same ownership for that length of time or longer, so I anticipate that the old system will continue to be relevant for some time (notwithstanding the original lawmakers’ estimate that it would be phased out in about 15 years….from 1925….!)

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