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Return to Land Law: Text, Cases and Materials, 5e Student Resources
Chapter 15 Self-test questions
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Imagine a case where A and B set up home together. Both A and B contribute to the deposit, and the remainder of the purchase price is financed by a mortgage loan made to A by C Bank. The freehold is registered in A's sole name and, to secure the loan, a charge is executed in favour of the bank. B's contribution to the purchase price gives her an equitable interest in the home; C has a legal property right in the home due to its charge. In such a case, which right is regarded as arising first: B's right or C's right?
Whilst the two rights essentially arise at the same time (the moment of the purchase of the freehold), C's right should be viewed as arising first.
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Logically, there is a very brief moment of time (a
scintilla temporis
) between A acquiring the freehold and then giving C its charge over the land. As B's right attaches to the land as soon as A acquires the freehold, B's right must arise before C's right and so must arise first.
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The rights arise at exactly the same time.
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A will make an agreement with C before acquiring his freehold, so C's right arises before B's right.
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Which of the following is the most accurate explanation of why, in
Scott v Southern Pacific Mortgages Ltd
, the Supreme Court decided against Mrs Scott?
It was held that the charge acquired by the lender took effect not only before any legal estate acquired by the purchaser, but also before any right acquired by Mrs Scott under its contract with the purchaser.
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It was held that Mrs Scott had impliedly consented to the lender having priority, as she knew that the purchaser planned to fund its acquisition of the land by borrowing the purchase money.
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It was held that Mrs Scott was not in actual occupation of the land and so she had no overriding interest.
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It was held that any property right held by Mrs Scott arose only when the purchaser acquired a legal estate and, following
Cann
, the lender was regarded as having acquired its charge before that point.
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In
Williams & Glyn's Bank v Boland
, why was the bank unable to use the lack of registration defence against Mrs Boland's pre-existing but unregistered right?
Because Mrs Boland had a pre-existing equitable property right, and was in actual occupation of the land when the bank acquired its rights.
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Because Mrs Boland was in actual occupation of the land when the bank acquired its rights.
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Because Mrs Boland had a pre-existing equitable property right.
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Because the bank was aware that Mrs Boland had a pre-existing equitable property right.
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If, in
Abbey National v
Cann
, Mrs Cann had obtained her equitable property right
before
the building society obtained its charge, would the outcome have changed?
Yes. The fact that Mrs Cann was in actual occupation of the property would have protected her right if it had predated that of the building society.
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Yes. Mrs Cann's property right would have pre-dated that of the building society, and she would therefore have succeeded.
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Perhaps. If Mrs Cann's property right had pre-dated that of the building society, then the 'basic rule' would have given priority to her right. However, the courts may still have allowed the building society a defence to her right, based on her implied consent to the charge.
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Definitely not. Mrs Cann's right was only equitable, and therefore the legal charge which the building society held over the property would have taken priority even if it had not pre-dated it.
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If A owns a freehold of land but is not in occupation of that land, and B (who does not own any neighbouring land) takes possession of A's land, and stays in uninterrupted occupation of it for 13 years, acting as owner throughout, will A be able to evict B?
If A's freehold is registered, no. If it is unregistered, yes.
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Yes. The answer is the same whether or not A's freehold has been registered.
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No. The answer is the same whether or not A's freehold has been registered.
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If A's freehold is registered, yes. If it is unregistered, no.
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Are legal property rights often subject to the lack of registration defence?
No. The Land Registration Act 2002 means that it is almost impossible for the lack of registration defence to be used against a pre-existing legal property right.
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Yes. If a legal property right is not registered then the defence will often be successful.
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No. Legal property rights must always be registered, and therefore the defence is never applicable.
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No. Legal interests are always overriding and therefore the defence is never applicable.
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