Registration 565

amount that is greater than the value to the interest holder of an interest over only part of the land.

15.4.7. Complexity

On this last point, as in most of the others commented on above, the 2002 Act arguably has made matters worse by over-refinement. In seeking to cut down the number and type of interests that can be overriding, the Act in general refines the pre-existing categories by introducing qualifications. But, even if these qualifications produce a better balance between interest holders and purchasers in individual cases, replacing crude bright line rules with ‘fairer’ nuanced ones does purchasers few favours. Enforceability rules work best for purchasers when they are simple and produce predictable results, and the introduction of elements such as reasonableness, subjective knowledge, discoverability and uncertainty in boundaries inevitably makes outcomes less certain.

Notes and Questions 15.3

Read Williams & Glyn’s Bank Ltd v. Boland [1981] AC 487, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

1Compare the view expressed by the House of Lords in Boland about the need to protect interest holders in occupation, to that expressed by the Law Commission and Land Registry in their joint report, Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law Commission Report No. 271, 2001) (Extract 15.2 above). Which do you think is correct?

2What steps did the House of Lords consider it reasonable for prospective purchasers and mortgagees to take in order to discover whether there were any overriding interests affecting the property? If all such steps are taken, would it lead to the discovery of all such interests?

3Despite the House of Lords’ strong rejection of the argument that notice was relevant in construing section 70(1)(c), in later Court of Appeal decisions the court tended to drift back to the test of discoverability when trying to decide in marginal cases whether the interest holder could be said to be in actual occupation: see, for example, the Court of Appeal decisions in Lloyds Bank plc v. Rosset [1989] Ch 350 (interest holder supervising builders carrying out restoration work), Hypo-Mortgage Services Ltd v. Robinson [1997] 2 FLR 71 (young children in occupation with their parents) and Malory Enterprises Ltd v. Cheshire Homes (UK) Ltd [2002] 3 WLR 1, CA (derelict land).

4Since the Boland decision, it has become very much more common for husbands and wives (and unmarried couples) to put their family homes in their joint names, a development encouraged by bank and building society mortgagees