Title Issues

Trevallion v Watmore and another [2016] reminds us of the caution that needs to be exercised when dealing with the first registration and a disposition of registered land. It is often the case that the purchaser will take the property free of any interests on the Register, however it has been known for persons acquiring land to discover that the land which they believed to be theirs is subject to an overriding interest.

Persons with an interest in land need to protect that interest by registering it with the Land Registry. It is important to understand the priority which an interest in land will take as this will vary for each type of interest involved. It is essential to look out for what are known as overriding interests. Overriding interests are interests which are not registered but will bind a party who acquires the Land. The Land Registration Act 2002 Schedule 1 and 3 sets out overriding interests which includes: the rights of persons in actual occupation, legal easements, customary and public rights.

In the recent case of Trevallion v Watmore and another [2016] an unregistered lease over part of the purchaser’s garden was classed as an overriding interest. The dispute concerned a triangular garden area below the garden which the purchasers believed they had bought with their property, however their next door neighbour had been using this garden area for many years and the issue arose of who this area belonged to upon the first registration of the property.

Where there is a first registration of land and a person is in actual occupation of the land then the interest will override this registration. However, if there is a subsequent sale the interest will only override the disposition if the person is in actual occupation of the land and this interest is obvious on a reasonably careful inspection of the land. Generally, where overriding interests are not obvious upon a ‘reasonably careful inspection’ of the land the interest is not protected. Therefore, where overriding interests are apparent upon a ‘reasonably careful inspection’ of the property they will prevail. In Trevallion it was concluded that had there been a reasonably careful inspection it would have been obvious that the triangular garden area was fenced off and in use as storage by the next door neighbour. Although the fence was concealed by a shrub it still remained that this would have been obvious upon inspection.

It is evident that thorough checks and inspections are essential when dealing with a property transaction in order to search for any potential overriding interests, even if this does take slightly longer as the consequences of these not being carried out can be potentially catastrophic.

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