Property Fixtures Fittings
Property Law - Systems of Registration
Introduction
This problem concentrates on the legal consequences for the conveyancing, investigation and title to registered and unregistered land. There is also further discussion of the law of fixtures and fittings and encroachment onto airspace. Adverse possession does not require to be discussed in any part of the analysis of this problem as the facts show that there has at no point been any occupation of the property for an uninterrupted period of more than 12 years.
A. Registered and Unregistered Property
Land may be either unregistered or registered in the Land Registration Act 1925. The consequences of registration or non-registration do not represent any great significance for the conveyancing process. The true difference lies in investigation of title and there are separate laws for third parties. It is vital to investigate a property in order to secure good title upon conveyance as thorough investigation will determine the required status of the vendor as owner of the property, who can then pass on an absolute title. The investigation will also facilitate awareness of the documents that require to be collected and presented to the Registrar in order to secure legal estate after the completion process. Charges over land also have to be settled with the lenders who should have consented to the sale and be redeemed from the proceeds. An investigation by a solicitor will reveal all the charges that are held over a property.
With regard to the current facts, it is unclear whether the property is registered or not.
7 Upton Road was mortgaged in 2002 but the facts do not reveal whether this is the first security over this property. This therefore means that the property is either registered or unregistered but the requirement under the 2002 Act will be for registration to take place, in accordance with s 6(4), two months after the relevant date, which would have been the date of the official signing of the contract.
Relevant legal consequences for registered land will therefore be dealt with first, followed by the consequences for unregistered land.
1. If the current property is registered.
If the property is registered, this would have occurred either at the time of completion of the mortgage agreement in 2002 at the latest. This therefore means that the charge is registered in the charges register.
(a) The importance of InvestigationThe purpose of registration, as created in the 1925 Act, was the simplification of the investigation of title to legal estates. This therefore means that title to land is guaranteed by virtue of the appearance of the proprietor's name in the register, which is referred to as, statutory vesting, and therefore aids in creating a smooth conveyance. There are three different registers and each has a separate purpose.
The first is the Property Register, which yields a description of the property. The second is the Proprietorship Register, which stipulates the name and address of the proprietor of the land, as well as the class of title which for freehold is either absolute or posssessionary. Thirdly, there is the Charges Register which specifies all charges such as covenants and mortgages.
(b) Problems for Henry(i) Henry's Title
The facts suggest that there has actually been no investigation of title as it is firmly stated that:
Henry was so impressed with the property that he signed the contract immediately.
The facts do not even point to Matteo executing a land certificate and a land registry and transferring them to Henry and there is no evidence to conclude that Matteo has absolute title to the property.
The said transfer of documents from Matteo to Henry would provide him with at least an equitable interest in the land. In order to obtain legal estate, he would then have to register the transfer of title. There is no time limit for this but without legal estate, Henry cannot have absolute title, which means that the Bank will have a right to repossess the property as they would have superior title as secured creditors.
(ii) If Henry has absolute title - the consequences for the mortgage
If on the other hand, there was a search and Henry does have legal estate, the solicitor has acted negligently by not discovering the registered charge and Henry will have a right of recourse against him. By virtue of s 198 the Law of Property Act 1969:
The registration of any instrument or matter under the provisions of the Land Charges Actshall be deemed to constitute actual noticeto all persons and for all purposes connected with the land affected
This therefore creates a method of giving notice of an interest to land to a potential buyer. Henry would therefore be bound to pay all sums in order to redeem this mortgage unless there is no mention of this charge within the official search certificate. As charge owners, Best Bank will however be entitled to compensation resulting from the negligence of the Registry.
(iii) Henry's Absolute title - third party rights
Mere perusal of the register is not sufficient for the purpose of investigation. There may be overriding interests, which, by definition do not appear on the register. Overriding interests bind all who acquire title in the land and as shown in s 70 of the Land Registration Act 1997, this includes the lease of six years that is held by Kym.
3. If the current property is unregistered
The 1997 act provides the mechanism for the gradual phasing out of unregistered land by stipulating that as of 1 April 1998, all freehold land and legal leases over 21 years in duration, must be registered upon sale, transfer or when the property becomes subject to a first mortgage. The Land Registration Act 2002 has reduced the legal lease duration to 7 years.
(a) Henry's titleUnregistered land title investigations are more difficult given the nature of documentary proof in title deeds that can be forged. Ownership is proven by the existence of past conveyances that indicate the transfer of title and the fact of possession by the person named in the title deeds.
Henry has approached the deadline for registration under s 6 of the Land Registration Act 2002. Without an extension, which may be granted by the Registrar, the conveyance becomes void and title in the property reverts back to the vendor, Matteo, who will hold the land in bare trust for Henry. In order to avoid this, Henry will have to register immediately but he will need to do this now and he will be required to show the title deeds and any documents providing details of planning consents, restrictive covenants and leases to the Registry in order to secure absolute title. If he cannot do this, he will have possessionary title only, which can then be challenged by someone with better title, such as Best Bank as lenders of a secured loan over the property. Henry cannot apply for an extension of the two month period for registration as there is no good reason to do so that would prioritise Henry over the Bank as a defaulted, secured creditor. Henry, on the other hand, is an unsecured creditor.
(b) If Henry has managed to register the property
If Henry has registered the property and he has absolute title, the unregistered charge will be void under s 4 of the Land Charges Act 1972 if the charge is class C(i). This means that it is a puisne mortgage whereby the lender does not have the title deeds. As it has been established that this is the only circumstance whereby the property could remain unregistered, Henry is therefore not obligated by this charge.
(c) Third Party Rights in unregistered land
Legal interests over unregistered land are all binding upon purchasers. It is clear from the facts that the lease is legal and therefore, no considerations of possible overreaching or notice require to be considered as these only apply to equitable interests. This therefore means that Kym's right of exclusive possession require to be upheld by Henry for the remainder of the lease period.
B. Fixtures and Fittings
1. Applicable Law
Fixtures and fittings that accede to the land will become part of the land with the result that they are owned by the proprietor and subsequent buyer of the land. Chattels, on the other hand, remain as moveable property that do not accede and so will not form part of the integral heritable property. This therefore means that in absence of any express agreement in the contract of sale, the chattels may be removed from the land without any right of recourse by the purchaser.
Fixtures are determined by two separate tests. The first is that an item is a fixture if it is physically attached to the land. This includes shelving, heating and plumbing but not items that are merely resting on the land, such as a greenhouse, as found in the case of H.E. Dibble Ltd v Moore. The second test is to establish the purpose of the attachment as either for exclusive enjoyment of the chattel or for a purpose that involves improvement of the land. The case of D'Eyncourt v Gregory found that ornaments and strategically placed seating, as well as two statutes of lions in a hall, although not physically attached, did form part of the landscaping for the purpose of improvement of the property. This can be distinguished from the statute of a Greek god in the case of Berkley v Poullet which was held not to be essential to the landscaped garden. There are therefore three categories, namely, chattels, fixtures and objects that are part of the land.
2. Application of the law to the current facts
Matteo has removed the kitchen cupboards and appliances, fitted carpets, plants, shrubs, statutes and a greenhouse. With regard to the indoor items, according to the case of TSB v Botham bathroom fittings and white goods were seen as fixtures as they were accessories that enabled the room to be enjoyed as a bathroom. The same can be said for kitchen cupboards and appliances that have the purpose of making it possible for the space to be used as a kitchen and therefore the items inside the house are fixtures. The carpets are also fixtures as they improve the comfort and insulation of the building and are physically attached and made to measure in the same way that a kitchen can be custom fitted.
With regard to the outdoor items, if they form part of a landscaped design of a garden that has the ability to improve the land, as in the D'Eyncourt case, they will be fixtures. However, should these items be unrelated to improvement but bear no other purpose than the sake of their presence, they will be separate chattels. It is difficult to distinguish the rules in the various cases but advice to Henry would be that in order for the outdoor items to be fixtures, they have to had all formed part of an integral garden landscape.
C. Encroachment upon Airspace
Property ownership in land extends into the far reaches of orbit at a size that matches the precise dimensions of the land on the ground. However, for the purposes of ordinary use and enjoyment, a rational compromise to height has been established by the courts. This therefore means that trespass and nuisance have been determined for air-space in cases concerning unauthorised construction of telephone wires and protruding tree branches.
While these are clearly distinguishable from aeroplanes, which are afforded the right to pass overhead under s 76 of the Civil Aviation Act 1982, the hot air balloon does in fact fall more in line with the notion of trespass. This is obvious given the proximity of the balloon to the house and the blatant purpose of obtaining a close look at the beautiful grounds. There is also ample evidence to invoke a petition for breach of the right to privacy under Article 8 of the European Convention of Human Rights, as ratified under UK law in s 1 of the Human Rights Act 1998.
Bibliography
Legislation
European Convention of Human Rights (Schedule to the Human Rights Act 1998)
Land Registration Act 1925
Law of Property Act 1969
Land Charges Act 1972
Land Registration Act 1997
Land Registration Act 2002
Case Law
TSB v Botham [1970] AC 157
Leigh v Taylor [1902] AC 157
TSB v Botham [1866] LR 3 Eq 382
TSB v Botham [1977] 1 EGLR 86
Elitestone Ltd v Morris & Another (1997) UKHL 15
TSB v Botham [1996] ECGS 149
Baron Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334
John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P &CR 104
Text Books
P Sarton, Conveyancing, (Macmillan Law Masters, 3rd edition, 2000)
K Green and J Carsley, Land Law, (Palgrave Law Masters, 4th edition, 2001)
Sir R Megarry and MP Thompson, Megarry's Manual of the Law of Real Property, (Sweet & Maxwell, 7th edition, 1993)
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