Abbey National Building Society v Cann
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Griffiths,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle |
| Judgment Date | 29 March 1990 |
| Judgment citation (vLex) | [1990] UKHL J0329-1 |
| Date | 29 March 1990 |
| Court | House of Lords |
[1990] UKHL J0329-1
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
House of Lords
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle. I agree with them that the appeal should be dismissed and, subject to what follows, I agree entirely with their reasons for reaching that conclusion.
The most important and most difficult question which arises for decision concerns the date at which to determine, in relation to the transfer or creation of a legal estate in registered land, what are the subsisting overriding interests in the land to which the estate transferred or created will be subject. One might be forgiven for starting from the a priori assumption that on its true construction the Land Registration Act 1925 must be capable of yielding a single answer to that question in the sense that the transferee or chargee either takes subject to overriding interests subsisting at the date of transfer or creation of the estate and free of overriding interests created between that date and the date of registration or that he takes subject to all overriding interests subsisting at the date of registration. But neither of these single answers will do. As my noble and learned friends cogently demonstate, to adopt either answer and apply it to all overriding interests across the board would produce at least one conveyancing absurdity. Thus it would be a conveyancing absurdity that the purchaser of a legal estate should take subject to the rights under section 70(1)( g) of any person who was not in occupation at the date of purchase so that the purchaser could know nothing of his existence. But it would equally be a conveyancing absurdity that the purchaser should not be subject, pursuant to section 70(1)( i), to rights under local land charges arising between the date of his purchase and the date of registration which, by virtue of the statutes creating them, bind all interests for the time being subsisting in the land.
I am entirely satified that it must be right to avoid both these conveyancing absurdities. But I confess that I have difficulty in finding any wholly convincing and consistent construction of the statute which achieves this result. It seems to me that it makes better sense of the scheme of the Act in relation to overriding interests if one can regard the rule to be applied to an overriding interest under paragraph ( g) of section 70(1), i.e. that it will only affect the legal estate if it was subsisting as such at the date when the estate was tranferred or created, as an example of the general rule, and the contrary rule to be applied under paragraph ( i) as the exception. This avoids other conveyancing absurdities which would arise if the transferor of the legal estate could, between the date of transfer and the date of registration, create new overriding interests, such as profits a prendre or easements under paragraph ( a), rights of fishing or sporting under paragraph ( j), or leases under paragraph (k), which would affect the estate in the hands of the transferee. One does not, of course, expect conveyancing absurdities from the pens of the skilled parliamentary draftsmen who implemented Lord Birkenhead's great scheme for the reform of English real property law embodied in the 1925 legislation, but even they may have occasionally expressed their complex interlocking concepts in forms of words which do not precisely fit every case. If the choice is between accepting a conveyancing absurdity on the one hand and straining or even modifying the draftsman's language to avoid it on the other hand, I have no doubt that the latter alternative is to be preferred. For the present, however, I need do no more than express my concurrence in the opinion that a person not in actual occupation of land at the date when a legal estate in the land is transferred or created cannot substantiate a claim to an overriding interest in the land under section 70(1)( g) against the transferee or chargee.
My Lords,
I have had the advantage of reading in draft the speeches to be delivered by my noble and learned friends, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle. I agree with both of them, and I too would dismiss the appeal for the reasons which they have given.
My Lords,
I have had the advantage of reading in draft the speeches to be delivered by my noble and learned friends, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle. I agree with both of them, and I too would dismiss the appeal for the reasons which they have given.
My Lords,
This appeal raises yet again what has become a familiar hazard for banks and building societies advancing money on the security of real property. The respondent society is the proprietor of a registered charge on property at 7, Hillview, South Lodge Avenue, Mitcham, Greater London, securing a sum of £25,000 together with interest. The property is leasehold and the title is registered at H.M. Land Registry under the provisions of the Land Registration Acts 1925-1986. The registered proprietor and the chargor under the society's charge is the son of the first appellant and the charge was given by him on the completion of his purchase of the property on 13 August 1984 in order to enable him to complete the purchase. The chargor was registered as proprietor of the property on 13 September 1984 simultaneously with the registration of the society as proprietors of the charge. The chargor having defaulted in payment of principal and interest, the society sought to enforce their security and on 5 August 1987 commenced proceedings for possession of the property against the chargor in the Croydon County Court. In fact the chargor had never lived in the property which had been purchased by him for the occupation of the first appellant, his mother, and the second appellant, the gentleman whom she subsequently married. At all material times since the completion of the purchase they had occupied the property as their home and it was therefore necessary to join them as defendants to the proceedings. Their defence was that they had an equitable interest in the property which took priority over the interest of the society and was binding on the society as an overriding interest by virtue of their occupation of the property having regard to the provisions of sections 23(1) and 70(1)( g) of the Land Registration Act 1925.
It will be necessary in stating the issues which arise for decision on the appeal to trace in a little detail the history of the relationship between the chargor and the first appellant and of the events immediately leading up to the acquisition of the property subject to the society' charge, but before I embark upon this, it will be convenient to refer to the relevant provisions of the Land Registration Act 1925 upon which the determination of the appeal depends.
Since the appeal is concerned with land which was, at all material times, registered land, it is unnecessary to refer to those provisions which are concerned with the first registration of land not previously registered and one can go straight to the provisions relating to transfers of registered titles which are contained in Part III of the Act of 1925. Although, as was pointed out in City of London Building Society v. Flegg [1988] A.C. 54, 84, the provisions of the Land Registration Acts were designed to operate in parallel and consistently with the property legislation governing unregistered land, the powers of a registered proprietor to dispose of or create legal estates rests entirely upon statute. Section 69(4) of the Act of 1925 provides: "The estate for the time being vested in the proprietor shall only be capable of being disposed of or dealt with by him in manner authorised by this Act."
Section 18 enables the registered proprietor of a freehold estate to transfer the registered estate "in the prescribed manner" (that is to say, prescribed, in the event, by the Land Registration Rules 1925 (S.R. & O. 1925 No. 1093 (L. 28)). Subsection (1) of section 18 describes a number of specific transactions (such as, for instance, grants of leases or rentcharges) which may be effected by a registered proprietor and subsection (4) refers in terms to dispositions by way of charge. It provides:
"The foregoing powers of disposition shall (subject to the express provisions of this Act and of the Law of Property Act, 1925, relating to mortgages) apply to dispositions by the registered proprietor by way of charge or mortgage; but no estate, other than a legal estate, shall be capable of being disposed of, or created under, this section."
Subsection (5) provides that the term "transfer" or "disposition" includes "any disposition authorised as aforesaid."
Registration of dispositions made by registered proprietors is provided for in section 19 (freeholds) and section 22 (leaseholds). So far as relevant, section 19 provides:
"(1) The transfer of the registered estate in the land or part thereof shall be completed by the registrar entering on the register the transferee as the proprietor of the estate transferred, but until such entry is made the transferor shall be deemed to remain proprietor of the registered estate; …"
Dispositions other than transfers are provided for in subsection (2) which similarly provides that they shall be completed by registration. Similar provisions relating to transfers of registered leasehold estates are contained in section 22.
The governing principle of the Act of 1925 is that the title to land is to be regulated by and ascertainable from the register alone. It is...
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