overriding interests in actual occupation

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    overriding interests in actual occupation

    If an interest belonging at the time of the disposition to a person in actual occupation is an overriding interest, so far as regards to land of which he is in actual occupation.

    As beneficial owner seller A makes a disposition to B, but at this time A remains in actual occupation of part of the property/land.

    At the time of disposition it is stated:

    So far as regards the remainder or reversion expectant on the equitable estate of the Vendor in the hereditaments hereby assured and the title to and further assurance of the same hereditaments after her death the covenants on her part implied by virtue of the Law of Property Act 1925 shall extend only to the acts and defaults of the Vendor and persons now or hereafter claiming through or in trust for her.

    Will this always remain an overriding interest or will B ever take free of that interest?

    #2
    The concept of an overriding interest only applies to registered land. The clause you quote comes from a conveyance and accordingly when it was made the land must have been unregistered. The same clause also deals with the technicalities of covenants implied under the Law of Property Act 1925 and has no bearing on occupation.

    Comment


      #3
      ​​​​​​Everytime I research remainder or reversion I come up with:


      Reversion, in the context of real property, means the return to the grantor or his/her heirs of real property after all interests in the property given to others have terminated. Reversion occurs when the property owner transfers a vested estate of lesser quantum than he started with. Reversion is also called "reverter."

      Additionally, reversion may refer to the part of an estate that the grantor retains upon conveyance of the rest of it.


      The interest in land retained by a person who has granted someone else a lesser interest.

      Remainder
      An equitable interest in land which only takes effect in possession when a prior interest ends.


      If seller A is retaining part of the land she is selling in that conveyance when will it revert to B?

      I'm trying to understand the following set up on unregistered land.
      I own two properties I will call A & B. Both properties share and occupy buildings on that piece of land but the land and buildings are vested in title B.
      I am a life tenant of B and a vesting deed is made on B only with regards to the settled land act.
      As beneficial owner I want to sell B. I am also beneficial owner of A. When I sell B, it would make sense to retain some interest in B as I still want to use that land and occupy this building.
      I am therefore wondering if the clause I refer to previously with regards to remainder or reversion is related to the set up I describe?

      Comment


        #4
        By way of example:

        A sets up a trust which provides for B to have a life interest and on B's death for the interest to revert to A. In that case A owns the reversion.

        A sets up a trust which provides for B to have a life interest and on B's death for the interest to pas to C. In that case C owns the remainder.

        Without seeing the whole conveyance it is not possible for me to say exactly what was going on, but the clause you quote is not relevant to what you are trying to understand nor is whether the vendor had an interest in remainder or reversion.

        You have made several posts and keep quoting from old deeds, but I do not think that studying them is going to help you resolve your problem. Your problem, if I recall correctly, is as follows:

        One person owned two adjoining terraced properties. At some stage alterations were made and part of one property became incorporated in the other. One of the properties was sold, but it was not realised by the conveyancer that the alterations had taken place and accordingly it was sold with the footprint as it was before the alterations were made. The same thing happened when the second property was sold. The current position is therefore that the Land Registry plan for one property includes an area which is in fact used and occupied with the other and that situation has existed for many years.

        If I have the facts more or less correct, then the owners of the property whose plan includes land they do not occupy can have no claim to the land they do not occupy because a mistake was made and the neighbours have title by virtue of their occupation.

        My further understanding, which I hope I am not confusing with another case, is that your parents own the property whose plan includes land they do not occupy.

        What exactly are you hoping to achieve? If you let us know we may be able to make some progress.

        Comment


          #5
          What I am failing to understand or make sense of is how occupation alone can simply change the title to another's property only because they do not occupy and someone else does.
          For example I could sell a freehold property I own, which has a sitting tenant.
          The new purchaser of my property is not in physical possession or occupation of that property but the buyer will still own the property. Forgive me if I am wrong but it seems you are suggesting if you do not occupy then this simply changes the title.
          My confusion arises from:
          Two properties have two separate titles.
          Unless there have been any changes of you cannot convey anything more or anything less than what the titles start with.
          The property and land of one of those titles is vested. Showing/describing the property and land in which makes title to that property.
          The owner then conveys that property title. However, when she sells that property, it is evident she is selling whilst a third party (the adjoining property) is in some form of occupation common usage of that property & land. Why does she have the right to convey and the purchaser gains the title (whilst someone else is in occupation) but years later it is now said this cannot be right?

          Actual occupation

          Under Para 2 of Sch 3 an interest may become overriding in two situations:

          1. Where the person claiming the interest is in actual occupation and that occupation would be obvious on a reasonable inspection or

          2. Where the person claiming the interest is in actual occupation and the person to whom the disposition is made has actual knowledge of the interest

          When we purchased the property this was obiovious.

          The transferors of our property shaded and signed the title plan, which included the land/property the neighboring property occupied.
          Our solicitor made some reference to the property being on our land but the neighbours occupy.
          When the neighbouring property becomes first registered their title plan does not include thie part.
          Our title plan is made according to the deeds.

          The neighboring property have a copy of our conveance listed on their A13 which mentiond the remainderreversion. Why would they have a copy of this properties conveyance if it's all irrelavant?

          Comment


            #6
            Originally posted by first timer 123 View Post
            What I am failing to understand or make sense of is how occupation alone can simply change the title to another's property only because they do not occupy and someone else does.
            I will try and explain.

            Back in feudal times barons were often fighting each other for land. A baron might go off on a crusade and return home to find that a neighbouring baron had taken advantage of his absence and taken over his land. He would literally have to fight to get it back. To avoid such conflicts eventually a rule emerged which said that if a person was in occupation long enough the person he ousted lost his title. That led to the rule that title to land was based on "seisin", a technical term roughly meaning "possession". Possession was and remains an important idea in English law because, though in practice it is not often significant, only the Crown owns land in the fullest sense of "own" and all anyone else can have is an estate in land.

            There was a time when title to land was shown not so much by a piece of parchment, but by memory. If there was a dispute neighbours would be consulted and local records examined to establish who had been in possession. Land was often transferred not by deed but by going onto or near the land and the owner declaring he delivered possession to the new owner. A branch or sod of earth as a symbol of the land might be handed over in a ceremony.

            Eventually writing came to assume more importance until it reached the stage where it became all important. However, that does not affect the underlying rule that title to land is based on possession. With importance placed on writing (within which we can include registration) this underlying rule is often forgotten. However, it remains the case that if you are in possession of land then, subject to certain conditions being fulfilled, you have title to it simply by the fact of being in possession.

            If a person goes into adverse possession of land they immediately acquire title to it. However, anyone with title before the adverse entry is not immediately dispossessed of their title. It is possible for two equivalent estates in land to exist at the same time. The two titles are relative with the earlier title taking precedence. There does though come a point where the person with the earlier title is liable to have it extinguished.

            What is the justification today for the law allowing the earlier title to be extinguished?

            First, there has to come a point in a person's affairs when certainty is achieved; that is the principle which lies behind the law of limitation.

            Secondly, land is a finite resource. It should not be allowed to remain unused indefinitely.

            Thirdly, and particularly relevant here, is that it corrects the deficiencies of the conveyancing system. Plans are not always accurate and boundary features are not always erected in the correct position. Even an accurate plan has limitations. Boundaries creep over time even if there is no intention to encroach.

            Registered land is subject to the general boundaries rule. The rule is set out in section 60 of the Land Registration Act 2002 and says that the boundary of a registered estate as shown for the purposes of the register is a general boundary and that a general boundary does not determine the exact line of the boundary.

            There is also section 62(2) of the Law of property Act 1925 which provides:

            "A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof."

            The effect of both section 60 LRA 2002 and section 62(2) LPA 1925 can be very wide. Taken together they give rise to the rule of thumb (which I emphasise is not a strict rule) that when you buy property what you see is what you get; the rule applies both negatively and positively. Adding into the equation the rules set out in the LRA 2002 relating to adverse possession and assuming no devil in the detail, I cannot see any court declining to order that the title plans of the two properties should be amended to reflect the long term occupation. No amount of looking at old deeds will change that.

            Comment


              #7
              What you say makes complete sense and I will come back to what you say, also with regards to what you see is what you get. You have answered so many of my many posts and questions and if you had been a solicitor, I can only imagine what the cost could have been!
              From what I'm gathering it's your opinion the properties have been conveyed incorrectly at some point. I don't deny it's not the neighbouring kitchen I just would like to establish when it was conveyed incorrectly. I also question how a single house with no land with rights over a parcel of land has later resulted in title being altered and no one has picked up on it for nearly 100 years.
              Please an I ask if you will help me with my sequence of events so I can fully understand the situation in my own head.
              Will you give me you time to start from the beginning. I don't expect you to know all the answers, just your interpretation would be hugely appreciated.
              I am purely wanting to understand what has happened from an historical point of view.
              What I have so far is two properties dating back to the 1800's. The deeds from this time describe them as a single dwellinghouse now divided into two:
              Of and concerning all that cottage or tenement now divided into and used as two dwellinghouses with the garths or parcel of ground therunto adjoining and therewith used or enjoyed. They are owned by one person but in the occupation of tennants.
              In the late 1800's there is an indenture that is granting a ROW for both properties.
              Together with a free and uninterrupted right of way and passage by ingress egress and regress to and for the owner of the two properties his heirs and assigns and his and their tenants servants workmen and others at all times.
              I understand OS maps etc cannot be wholly relied on, but I do believe they can give a picture.
              Forgetting ownership for the moment the below OS map from this time shows the properties and situation on the ground. It shows the ROW granted for both properties marked red.
              No 1 also has been granted this ROW at the part marked red on the map.
              It appears No 1 does not own land abutting/adjoining the property directly (evidenced later). The only possible way it appears possible for No 1 to have this ingress egress and regress is through a door or opening in the party wall to property 2.
              At this point in time the properties are owned by one person and are tenanted, this was no doubt be acceptable in the late 1800's and the common owner of the properties can do what he pleases with them.

              By looking at the map can you please tell me of any other way No 1 can reach the ROW marked red without using the part marked x?

              Comment


                #8
                The following scenario explains how errors can occur.



                The above show 2 houses 6 and 8. Forget the red and it shows the two houses as they were in 1900. It is how they appeared on the OS plan in that year. In 1920 John buys the two houses. He wants to live in 6 and let 8. He wants a bit of extra space so knocks done part of the dividing wall and puts up two partition walls so that the area edged red within 8 becomes incorporated with 6. To the outside world it still appears that 6 and 8 are as they were in 1900. In 1930 John sells both houses to Peter who wants to let both. Peter does not appreciate that alterations were made. In 1935 both properties become vacant and Peter decides to sell them. The OS plan has been updated but 6 and 8 still appear as shown on the OS plan in 1900. No 6 is sold first and in the conveyance the property is described as no 6 and a plan attached which shows no 6 but without the red square because no one tells the solicitor that there has been an internal change. No 8 is then sold and the plan shows the red square as part of the property.

                So we have a situation in 1935 where the conveyances of both properties are wrong. Will the errors be picked up? They are not going to be picked up by a conveyancer unless he has reason to suspect something. It will not be unreasonable to assume that the internal division is as it was in 1900. A surveyor might have picked up that the internal layout was not as expected, but no surveyor might have ever been instructed.

                We fast forward to the first sale of 6 after the area became subject to compulsory first registration. Another edition of the OS plan has been published and still shows the properties as they were in 1900. The plan on the 1935 conveyance is the only plan in the title deeds because all later conveyances referred to it. There is no reason for the Land Registry not to register 6 with a plan which does not show the red square. Similarly there is no reason not to include the red square in the title plan of 8 on compulsory registration.

                *

                The above is a straightforward scenario, but in practice it can all be a bit more complicated.

                Comment


                  #9
                  The plan you show whould be so very hard for any conveyancer or purchaser to pick up. I can't help but say this particular situation would be so very obvious to all involved. Even today conveyancers, solicitors etc say to check for anomolies. This anomaly would be blatantly obvious. Not only 100 years ago but to us and for the neighbourng property in the 1990's

                  If you're only allowed to convey/purchase what is occupied & what a reasonable person would believe comes with the property. Please can I ask....
                  The seller of No 52 vests the land and property you see in the photo. How were they allowed to convey the property/land and title you see in the photo whilst No 50 is in occupation of the part marked K?

                  Comment


                    #10
                    The point here is that in most cases a title plan, whether on an old deed or at the Land Registry, is usually sufficient to identify the boundaries of land with reasonable certainty, though not with precision. There is therefore a tendency for conveyancers to assume, or at least take as a starting point, that if they get a contract which purports to sell a property by reference to a plan and examination of the title shows the seller has title to what the plan shows all is in order. What should happen though is that the conveyancer should produce the plan to his client and say: Does this plan show what you think you are buying? If you are not sure get a surveyor to check.

                    The simple fact is that discrepancies are not always picked up. A colleague had a case where the plan showed the property on the wrong side of the road! There is not really a lot of point you asking how the situation you are faced with arose. You just have to accept that you have the situation.

                    Comment


                      #11
                      But that is what I am trying to say. It was picked up on by us and our solicitor and the transferors of our property shaded and signed the title plan. I can understand if this had never been picked up on but as I say it’s obvious to any reasonable person not to have been

                      Comment


                        #12
                        Mr A owns a house and land. (The house and land you see in the photo)
                        Mr A sets up a trust which provides for Mrs A to have a life interest in that property/land.
                        On Mr A's death, the trustees become the owners of the property and Mrs A is the beneficial owner.
                        The property and land in the photo is vested in A.

                        A beneficial owner is a person entitled to the benefit of the land and on their death the equitable interest may not pass in the same way as the legal ownership does. The register does not guarantee that the proprietor is the beneficial owner and that they own the land for their benefit.

                        Mrs A also owns the adjoining property No 50 and occupies the part marked K even though it is on the title of her husband's estate No 52 and later vested to her.

                        If Beneficial owner gives the person a right to enjoy or benefit from the property, if this can include the right to occupy the property, then surely she has the right to continue occupying K when she sells No 52?

                        If I follow what you are telling me, it suggests you cannot acquire title to property/land if it is not in your physical possession.
                        If this is true how did the next buyer of No 52 , Mr Z acquire the same title/property/land you see in the photo/ which is the same title as Mr A's Estate which passed to Mrs A when it is obvious No 50 is in occupation of the part marked K and sharing the garden of No 52?

                        Comment


                          #13
                          Beneficial interests are not overriding interests. On a sale they are overreached as provided by section 27 of the Law of Property Act 1925: 27 Purchaser not to be concerned with the trusts of the proceeds of sale which are to be paid to two or more trustees or to a trust corporation.

                          (1) A purchaser of a legal estate from trustees of land shall not be concerned with the trusts affecting the land, the net income of the land or the proceeds of sale of the land whether or not those trusts are declared by the same instrument as that by which the trust of land is created.

                          (2) Notwithstanding anything to the contrary in the instrument (if any) creating a trust of land or in any trust affecting the net proceeds of sale of the land if it is sold, the proceeds of sale or other capital money shall not be paid to or applied by the direction of fewer than two persons as trustees, except where the trustee is a trust corporation, but this subsection does not affect the right of a sole personal representative as such to give valid receipts for, or direct the application of, proceeds of sale or other capital money, nor, except where capital money arises on the transaction, render it necessary to have more than one trustee.

                          Comment


                            #14
                            Thank you for explaining this to me.
                            I think I am understanding that any interests both beneficial or equitable cease upon the sale and the new purchaser takes free of any interests.
                            The reason for my confusion is when I look regarding Life Estates and Life Tenants, some of the information suggests when that property is sold you can still occupy or you are selling your life estate for the duration of your life.
                            One thing I can almost be certain of is you don't end up with a half of your neighbours kitchen on your land without any explanation.
                            I start with two houses and one piece of land. The land is attached to the rear of property No2 only, Making No 1 landlocked.

                            The properties are common ownership and tenanted and both share the garden. So at the moment there is no problems/issues.

                            Both properties have a free and uninterrupted right of ingress, egress & regress located at the bottom of that land.

                            At some stage in the future a small building is added to the land/rear wall of No 2 only Exactly where there is supposed to be a free and uninterrupted right of ingress, egress & regress for No 1. It's obvious the landlocked property uses/occupies this building as they would not be able to get in/out.

                            The seller of both properties then makes a vesting deed for No 2 which includes all the land (including the small building being occupied/used by No 1).
                            This vesting deed is on our A13, it's not on the neighbouring properties.

                            If the law states a property can only be conveyed fee simple in possession (meaning physical possession) how did the seller making the vesting deed of the land and property for No 2 be able and lawfully allowed to convey this land/property to the next buyer when the neighbouring property was in occupation of part it?

                            When she then conveys the two properties separately, No 2 conveyance makes reference to the vesting deed and remainders reversion etc. The conveyance of No 1 does not. If at this point that building solely attached to the rear wall of No 2 was meant to be part of No 1, I would believe the seller would have stipulated this.
                            She conveys this property with a garden and she then conveys No 1 with a garden. There is only one garden which she has already conveyed.

                            On our A13 this vesting deed & conveyance is listed as the documents used to deduce our title (including the part occupied)

                            No 1's A13 has a copy of this same conveyance of ours. I wonder why they would have a copy of this on their A13.
                            Regardless of what further extensions/encroachments there have been, No 1 were/have and still would be in occupation of this building if no changes had ever been made.

                            It feels like I do not actually know what land we should own.
                            I know you will say, the land we own is that what is contained within the red edging of our title plan. However, as No 1 are and have been in occupation of this building, we are told it can't be our land.
                            By looking at the deeds No 1 have also been in occupation of our garden too.

                            The vesting deed is vesting the land to No 2, but at this time No 1 were in occupation of the building and also sharing that same garden/land.


                            Comment


                              #15
                              What are you hoping to achieve?

                              Comment

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