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Introduction
The transfer of the legal estate to Dee will trigger first registration (LRA 2002, s 4(1)(a)(i) LRA 2002). Dee will take the land subject to any interests entered on the Register or capable of overriding it (LRA 2002, s 11(4)), provided that these interests were valid at the date of the transfer of the estate. We shall assume that the contract between Hilary and Dee satisfies section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
The validity of the interests up to and including the date of the transfer of the legal estate depends upon the basic rules of unregistered land. Dee will take the house subject to:
Clive
Note that if Hilary had granted Clive a legal lease, that lease would have had priority over both the contract to sell the land to Dee, and the eventual transfer of the land to Dee. However, see also the comments on the restrictive covenant below.
Note that if the agreement for the lease had been in writing, Clive would have had an equitable lease which could have been protected using a C(iv) Land Charge (an estate contract). If he registered such a charge before Dee had protected her contract (whether by registration of a land charge, applying for a search giving her priority or by completing the transfer) Dee would take subject to Clive’s equitable lease. If Clive had an unprotected equitable lease, it would be void against Dee provided that she gave money or money’s worth for Hilary’s legal estate in the land. However, see also the comments on the restrictive covenant below.
Lucy
a) Assuming that Lucy is not a co-owner of the legal estate (that is, that her name does not appear on the title deeds), Lucy’s contribution to the purchase of the house means that she has a beneficial interest [1]. Quantification of this beneficial interest lies outside the scope of this answer.
b) A beneficial interest (trust) cannot be protected by registration as a land charge under the LCA 1972.
c) Lucy’s interest can be overreached by the transfer of the legal estate in the house to Dee, provided that Dee pays the proceeds of sale to two or more trustees or a trust corporation (LPA 1925, ss 2, 27). Payment to Hilary alone will not overreach Lucy’s interest.
d) Subject to there being sufficient trustees, Dee will be bound by Lucy’s interest after the registration of her title to the house unless:
Emma
a) Emma’s lease is capable of being a legal lease. The formality requirements of do not apply to leases for a term not exceeding three years (LPA 1925, s 54(2)). The grant of a lease for a term not exceeding seven years does not normally trigger first registration of the lease (LRA 2002, s 4(1)).
b) As Emma’s lease predates the contract with Dee, it will take priority over that contract. Upon completion and registration of the transfer to Dee, Emma’s lease will be binding on Dee as an interest capable of overriding the Register (LRA 2002, s 11(4)(b) and Sch 1, para. 1); note that it cannot be protected by registering a notice against the title (LRA 2002, s 33(b) LRA 2002).
c) Emma may wish to register a caution against first registration of the house (LRA 2002, s 15) to ensure that Dee is alerted to Emma’s lease.
d) There is, however, a further problem concerning Emma’s lease. The grant of the lease may be in breach of the restrictive covenant (it is being used as more than one private dwelling house, and as a source of income for Hilary). Even assuming that the burden of the restrictive covenant [2] has passed to Hilary, the covenant will only still enforceable if:
Even if the covenant is enforceable, it does not render the lease invalid. It will be for the person with the benefit of the covenant to seek a remedy [3].
Even if he or she takes action before the end of the lease, the breach is not capable of remedy by injunction as the lease has already been granted.
Footnotes