Registered and unregistered title

This week supplies the machinery through which the proprietary rights studied in Week 1 become effective against third parties. Land law is not concerned only with the creation of estates and interests. It is equally concerned with priority: if A grants, promises, mortgages, occupies, or holds an equitable right, and B later buys or lends against the land, who is bound? The answer depends first on whether title to the land is registered or unregistered.

The modern system is dominated by registered title under the Land Registration Act 2002. Its core ambition is to make the register the central source of information about title. A purchaser should be able to inspect the register, discover the estate, charges, notices and restrictions, and then complete with confidence. That ambition is not absolute. Some rights bind without being entered on the register, most notably short legal leases and certain interests of persons in actual occupation. Nor does registration dispense with the older equitable doctrines entirely: overreaching, constructive trusts, proprietary estoppel, priorities between equitable interests and the continuing significance of valuable consideration all remain important.

Unregistered title is now a residual system, but it is still examinable and conceptually indispensable. First, pockets of unregistered land remain. Secondly, the old law explains why registration was introduced. Thirdly, many Durham problem questions use unregistered title to test whether students understand the difference between notice, land charges registration, overreaching and legal estates. Under the unregistered system, legal estates and legal interests generally bind the world; equitable interests bind purchasers unless defeated by the doctrine of bona fide purchaser for value of a legal estate without notice, or unless a land charge requiring registration has not been registered under the Land Charges Act 1972.

The topic is therefore not an isolated administrative chapter. It is the grammar of land law. Easements, mortgages, restrictive covenants, beneficial interests under trusts, estate contracts and leases all require different registration treatment. A strong Durham answer identifies the estate, classifies the right, asks whether title is registered, applies the relevant statutory priority rule, and only then states who is bound. Weak answers often recite cases about actual occupation without first asking whether the disposition is registrable, whether overreaching has occurred, or whether the right is a land charge in unregistered land.

For Year 2 students, this topic marks a change from first-year private law technique. In Contract and Tort, the primary question was usually liability. In Land, the primary question is often enforceability against a successor. That requires a sequential method. The best answers are not more descriptive; they are more disciplined.

English land law developed from a conveyancing culture in which investigation of title was private, lengthy and retrospective. A purchaser of unregistered land had to examine deeds, trace the seller's title, inspect the property, raise requisitions, and consider whether earlier equitable rights might bind. The doctrine of notice partly controlled priority. A purchaser of a legal estate for value who acted in good faith and had no notice of a prior equitable interest could take free of it. Conversely, a purchaser with actual, constructive or imputed notice could be bound. This system made sense in a world of documentary conveyancing, but it was expensive, uncertain and dependent on legal fictions about what a prudent purchaser ought to have discovered.

The 1925 property legislation attempted to rationalise the system. The Law of Property Act 1925 reduced the number of legal estates and legal interests. The Settled Land Act 1925 and the trusts legislation promoted overreaching, allowing beneficial interests under trusts to be shifted from land to purchase money when capital money was paid to the correct trustees. The Land Charges Act system created public registers for certain equitable interests affecting unregistered land. It was meant to reduce reliance on notice by requiring registration of specified charges against the name of the estate owner.

The 1925 reforms did not create immediate universal title registration. Registration expanded gradually through compulsory registration areas and then through trigger events. The Land Registration Act 1925 created the old registered system, but that system retained substantial categories of overriding interests. The register was not, and could not be, the complete record of every binding right. The most controversial example was the equitable interest of a beneficiary under a trust who was in actual occupation. The House of Lords in Williams & Glyn's Bank Ltd v Boland held that such an interest could override a registered disposition. The case demonstrated both the social value and the commercial cost of overriding interests: the bank's register search did not reveal the wife's beneficial interest, but her occupation made it unfair to ignore her claim.

The Law Commission's reform programme leading to the Land Registration Act 2002 aimed to move closer to a system of title by registration rather than registration of title. The register should not merely record independently existing ownership; it should confer, guarantee and rank title. Electronic conveyancing was part of that vision, although it has not been fully realised. The 2002 Act narrowed overriding interests, reduced the category of short leases from twenty-one years to seven years, required more dispositions to be completed by registration, and made the priority rule in section 29 central.

Unregistered conveyancing remains relevant because first registration is not universal in the practical sense and because legal problems often arise at the boundary: an unregistered estate may become registered on transfer; an old equitable right may have been protected, or not, under the land charges system; a purchaser may claim protection under section 29 only after completion by registration. Historical context therefore matters doctrinally. It explains why registered land is not simply a mirror, why actual occupation still matters, and why land law maintains a tension between marketability and protection of vulnerable or undisclosed property holders.

1. Begin with the status of title. The first question is always whether the estate affected is registered. A right over registered land is governed principally by the Land Registration Act 2002. A right over unregistered land is governed by the older mixture of legal estates, equitable doctrine, overreaching, notice and the Land Charges Act 1972. Do not blend the two systems. Notice is generally not the priority test for registered land; registration and the statutory exceptions are.

1. Registered title distinguishes creation from priority. Some rights may exist in equity before registration, but they may not operate at law until statutory registration requirements are met. Section 27 LRA 2002 is critical: certain dispositions of registered estates or charges do not operate at law until completed by registration. A transfer of a registered estate, a registrable legal charge, a lease for more than seven years and the express grant or reservation of many legal easements must be completed by registration. Until then, the right may be equitable only. This matters because a later registered disponee may take priority under section 29.

1. Section 29 is the ordinary priority rule for registered dispositions for valuable consideration. Where a registrable disposition of a registered estate is made for valuable consideration and completed by registration, interests affecting the estate immediately before the disposition are postponed unless their priority is protected. Protection may arise because the interest is a registered charge, the subject of a notice, falls within Schedule 3, or appears from the register to be excepted. The buyer's actual knowledge is not, by itself, a substitute for protection, although knowledge can matter indirectly, for example under Schedule 3 paragraph 2 in relation to non-obvious occupation.

1. Notices protect third-party interests on the charges register. A notice does not validate an invalid right. It is a priority device, not a magic wand. Estate contracts, equitable easements, restrictive covenants and many equitable interests can be protected by notice. By contrast, beneficial interests under a trust of land are generally protected by restrictions and by overreaching, not by notices. A restriction regulates the circumstances in which dispositions may be registered; it does not itself state that the protected person has a proprietary interest. The distinction between notice and restriction is a common examination fault.

The cases fall into three groups: unregistered land charges, overriding interests in registered land, and the interaction between occupation and overreaching.

Midland Bank Trust Co Ltd v Green is the leading authority on the strictness of land charges registration. The claimant held an option to purchase, which was an estate contract and therefore registrable as a land charge. It was not registered. The landowner then sold to his wife for a small sum, evidently to defeat the option. The House of Lords held that the unregistered estate contract was void against the purchaser within the statutory scheme. The moral unattractiveness of the transaction did not restore the claimant's priority. The case is indispensable because it prevents students from importing notice-based reasoning into a land charges question.

Williams & Glyn's Bank Ltd v Boland established the modern importance of actual occupation. A wife had a beneficial interest under a trust arising from contributions to the matrimonial home and was in actual occupation when the bank took its charge. The House of Lords held that her interest overrode the registered disposition under the then legislation. The decision forced banks and purchasers to take occupation seriously and showed that the register was not a complete mirror. It also made clear why lenders commonly require all adult occupiers to consent or postpone interests.

City of London Building Society v Flegg is the counterweight. Beneficiaries under a trust were in occupation, but capital money had been paid to two trustees. The House of Lords held that their beneficial interests were overreached. Once overreached, the rights attached to the proceeds, not to the land, and therefore could not override the lender's charge. This is the case students most often forget when discussing Boland. Occupation can protect only an interest that still affects the land.

Abbey National Building Society v Cann refined the timing of actual occupation. A purchase funded by a mortgage and the acquisition of title were treated as one indivisible transaction. The mother, who claimed a beneficial interest and had moved furniture into the property shortly before completion, could not assert an overriding interest prior to the lender's charge. Cann is a warning against assuming that occupation at some loose point around completion is sufficient.

Chhokar v Chhokar illustrates that actual occupation is not confined to uninterrupted physical presence at the precise moment of completion. A wife was temporarily absent because she was in hospital giving birth when her husband transferred the property. Her belongings remained and the purchaser knew of her. The Court of Appeal treated her as in actual occupation. The case shows that the doctrine is factual and humane, but it does not abolish the requirement of occupation.

Link Lending Ltd v Bustard is a modern example under the 2002 Act. The claimant was absent from the property because of mental illness and detention in hospital, yet maintained a sufficient connection with the home. The Court of Appeal held that actual occupation could continue despite involuntary absence. The case is useful because it emphasises persistence of occupation where absence is explained by circumstances beyond the claimant's control.

Taken together, the cases reveal a coherent structure. Registration promotes marketability and certainty; overriding interests preserve fairness where occupation gives visible warning; overreaching protects purchasers who pay the correct trustees; and land charges registration imposes harsh consequences for non-protection. A strong answer uses the cases to perform these functions, not as a chronological list.

See practice questions section below.

See further reading section below.