Interest in Land in UK Law

No doubt such tenants in common are interested in the land in the general sense, as was remarked by Lord Justice Russell in re Kempthorne, 1930 (1) Ch. at p. 292 But that is not the same thing as their being owners of equitable interests in the realty. The whole purpose of the trust for sale is to make sure, by shifting theequitable interests away from the land and into the proceeds of sale, that a purchaser of the land takes froe from the equitable interests.

The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially.

Plainly there are large areas where the two concepts do not overlap : when a landowner stands by while his neighbour mistakenly builds on the former's land the situation is far removed (except for the element of unconscionable conduct) from that of a fiduciary who derives an improper advantage from his client. But in the area of a joint enterprise for the acquisition of land (which may be, but is not necessarily, the matrimonial home) the two concepts coincide.

The purpose, in each system, is the same, namely, to safeguard the rights of persons in occupation, but the method used differs. In the case of unregistered land, the purchaser's obligation depends upon what he has notice of—notice actual or constructive. In the case of registered land, it is the fact of occupation that matters. If there is actual occupation, and the occupier has rights, the purchaser takes subject to them.

How then are these various rights to be fitted into the scheme of the Land Registration Act 1925? It is clear, at least, that the interests of the co-owners under the "statutory trusts" are minor interests—this fits with the definition in section 3(xv). And, moreover, I find it easy to accept that they satisfy the opening, and governing, words of section 70, namely, interests subsisting in reference to the land.

If this is right, the pieces of the jigsaw fit together reasonably well. A purchaser or mortgagee inspects and enquires before completion, in the established fashion. He then completes the transaction, taking an executed transfer or mortgage. Whether or not an overriding interest under paragraph (g) subsists so far as his freehold or mortgage is concerned falls to be determined at that moment.

Had they intended the Law of Property Act 1925, section 63, to have a different kind of operation from that which the Conveyancing Act 1881, section 63, had been designed to achieve, I would certainly have expected some indication of this fact in section 63 Instead, section 63 of 1881 was left intact by the amending Act (Law of Property Act 1922) and was consolidated without any change in its language into the Act of 1925.